The year the judiciary lost its balance

Amendments gave executive greater control over superior courts

ISLAMABAD:

As the curtain falls on 2025, the year is increasingly being seen by legal experts as one of the bleakest for judicial independence, following the passage of the 26th and 27th constitutional amendments and the steady consolidation of executive dominance over the superior judiciary.

Throughout the year, the executive remained firmly in the driving seat, prompting many observers to term 2025 a complete disaster for the judiciary. Early hopes that the courts might push back and restore institutional balance gradually faded as a series of judicial and constitutional developments aligned with the government's agenda.

When the present regime succeeded in passing the 26th constitutional amendment in October last year, with the facilitation of then chief justice Qazi Faez Isa, expectations were raised that the Supreme Court under CJ Yahya Afridi would resist encroachments on judicial independence and act as a counterweight to executive power.

However, the expectations were soon dampened. Judges occupying key positions appeared to fully support the executive agenda, particularly in matters concerning the appointment and transfer of judges.

The SC could not even decide petitions challenging the 26th constitutional amendment, which authorised a parliamentary committee to select the chief justice of Pakistan from among three senior judges. The adjudication of those petitions was widely viewed as essential for securing judicial independence.

Significantly, the SC did not decide petitions challenging the 26th constitutional amendment, which empowered a parliamentary committee to select the chief justice of Pakistan from among three senior judges. The adjudication of those petitions was widely seen as critical for safeguarding judicial independence.

Instead, the government bypassed the three senior-most judges and nominated Justice Aminuddin Khan as head of the Constitutional Benches (CB). This was followed by the appointment of a majority of judges perceived as aligned with the government to these benches.

A three-member committee led by Justice Aminuddin Khan, with Justice Jamal Khan Mandokhail and Justice Muhammad Ali Mazhar as members, did not prioritise the fixation of petitions challenging the 26th constitutional amendment.

Interestingly, the committee proceeded to list cases where relief was sought by the executive, with outcomes consistently favouring the present government.

First, the constitutional bench set aside a previous Supreme Court judgement and endorsed the trial of civilians in military courts.

Second, it overturned an SC judgment that had held that PTI was entitled to reserved seats following the February 8 elections.

That decision enabled the present government to secure a two-thirds majority in the National Assembly.

During the outgoing year, the government also initiated the transfer of judges from different high courts to the Islamabad High Court. The chief justices of the respective high courts, along with Chief Justice Afridi, gave consent for the transfer of three judges to the IHC.

Five IHC judges, who had earlier written to the Supreme Judicial Council alleging interference by agencies in judicial affairs, strongly objected to the transfers, terming them a violation of judicial independence.

They approached the SC, arguing that the executive plan was tainted with mala fides and driven by the federation's desire to punish serving IHC judges and effectuate a "takeover" of a high court.

However, the constitutional bench led by Justice Muhammad Ali Mazhar, in its majority decision, upheld the transfer of the three judges. The question of judicial seniority was also referred to the president for determination.

In their minority opinion, Justices Naeem Akhtar Afghan and Shakeel Ahmad observed that the transfer of judges from different high courts to the IHC was tainted by malice and aimed at taking control of the Islamabad High Court.

Subsequently, the five IHC judges filed an intra-court appeal against the majority ruling, but the matter could not be fixed for hearing before the passage of the 27th constitutional amendment.

Following the transfer decision, transferee judge Sardar Muhammad Sarfraz Dogar was appointed Chief Justice of the Islamabad High Court. He had earlier served as acting IHC chief justice.

Justice Dogar did not disappoint the executive following his elevation. Observers noted that PTI failed to secure any substantive relief during his tenure. PTI leaders even approached the IHC to seek an early hearing on Imran Khan and Bushra Bibi's applications for suspension of sentences in the Al-Qadir Trust case.

Despite the passage of several months, the IHC did not decide on those applications. Likewise, Adiala Jail authorities did not comply with IHC orders regarding Imran Khan's meetings with party leaders and others.

With the superior judiciary increasingly seen as yielding ground, the government moved ahead and passed the 27th constitutional amendment in November. Under the amendment, the SC's jurisdiction to interpret the Constitution, hear public interest matters, and adjudicate key legal questions was transferred to the newly created Federal Constitutional Court (FCC), whose judges are appointed by the executive.

Justice Aminuddin Khan was appointed the first chief justice of the FCC just two weeks before his retirement.

The FCC has now become the apex court, with its decisions binding on all courts, including the SC, which has effectively been reduced to an appellate forum.

Despite these changes, Justice Yahya Afridi's designation as Chief Justice of Pakistan was preserved through the constitutional amendment.

Following the passage of the 27th Amendment, SC judges Syed Mansoor Ali Shah and Athar Minallah resigned from office. Lahore High Court judge Shams Mahmood Mirza also tendered his resignation.

Notably, no visible resistance emerged from the superior judiciary to halt the 27th amendment, despite its far-reaching implications for judicial independence.

More recently, Tariq Mehmood Jahangiri, who is a signatory to the six judges' letter, was removed from office by the IHC on the basis of an invalid degree. The matter, however, was already pending before the Sindh High Court, a fact the IHC reportedly ignored.

Since the passage of the 26th constitutional amendment, judges perceived as not being in the good books of the present regime have reported growing insecurity, with many sidelined by their own colleagues.