Pakistan’s judiciary, once a symbol of resistance, has eroded through infighting, overreach, and failed reforms, culminating in constitutional weakening
Pakistan’s Judiciary: From Resistance to Relapse and Constitutional Weakening
By Dr Ikramul Haq
The judiciary that once brought a dictator to his knees has surrendered without a fight. The court that once drew millions into the streets in defence of the rule of law has become an institution the public barely recognises. The amendment that has rewritten its constitutional identity was not imposed suddenly; it was invited through years of hubris, infighting, and judicial adventurism that steadily eroded its own legitimacy.— The Fall of the House of Justice , Syed Jalal Hussain, The Express Tribune
Before the coup d’état by General Pervez Musharraf on 12 October 1999, the judiciary in Pakistan showed resilience in some cases by striking down excessive and abusive exercises of power by dictators against democratic institutions. The Supreme Court, in particular, played a role in curtailing the arbitrary use of powers under the emergency provisions of the Constitution of the Islamic Republic of Pakistan (the Constitution) and in protecting the fundamental rights of citizens during military rule.
The defiance and resilience of the Supreme Court surfaced in many cases, including but not restricted to the following: Sabir Shah v Federation of Pakistan [PLD 1994 SC 738]; Mohammad Nawaz Sharif v Federation of Pakistan [PLD 1993 SC 473]; Federation of Pakistan v Aftab Ahmad Sherpao [PLD 1992 SC 723]; Ahmad Tariq Rahim v Federation of Pakistan [PLD 1992 SC 646]; Hakim Khan v Government of Pakistan [PLD 1992 SC 595]; Federation of Pakistan v Mohammad Saifullah Khan [PLD 1989 SC 166]; and Benazir Bhutto v Federation of Pakistan [PLD 1988 SC 416].
The effectiveness of people’s street power, which reigned from 9 March 2007 to 20 July 2007 and from 3 November 2007 to 16 March 2009, culminated in the second restitution of Iftikhar Muhammad Chaudhry as Chief Justice of Pakistan on 22 March 2009. Symbolically, a new Pakistan emerged on 16 March 2009. Yet, the judiciary as a vital constitutional institution ultimately lost its battle against the men in khaki on 21 October 2024 with the Constitution ( Twenty-sixth Amendment ) Act 2024, and later on 13 November 2025 through the Constitution ( Twenty-seventh Amendment ) Act 2025, which became the final nail in the coffin.
Following the people’s show of power leading to 16 March 2009, the nation was genuinely enthusiastic about an independent judiciary and effective dispensation of justice. All were expecting the establishment of representative democracy and effective accountability, but instead, they witnessed mounting tension between different organs of the State and judicial overreach.
Administration and dispensation of justice in Pakistan, and the establishment of a bona fide democratic system, remain a distant dream. In the wake of decisions such as Chief Justice of Pakistan Mr Iftikhar Muhammad Chaudhry v President of Pakistan [PLD 2010 SC 61] and Dr Mobashir Hassan & Others v Federation of Pakistan & Others [PLD 2010 SC 1], some hope for rule of law, social justice, and economic equality temporarily emerged, but it was ruthlessly throttled by the de facto rulers and those heading the judiciary.
The higher judiciary’s involvement in political matters has overshadowed its responsibility to address public concerns and the plight of common litigants.
It is an undeniable fact that in the post-16 March 2009 scenario, the judiciary under Chief Justice Iftikhar Muhammad Chaudhry and all subsequent Chief Justices disappointed the people by failing to deliver, as no reform agenda was implemented to remove obstacles in the dispensation of justice in a system that remained hopelessly redundant, painfully unproductive, and marred by inefficiency and inordinate delays.
In the post-16 March 2009 scenario, the onus was on Parliament to undo all actions taken by General Musharraf on 3 November 2007 and to remove all distortions made in the Constitution of Pakistan since 1973. However, Parliament once again failed to do so, and ultimately, the Supreme Court intervened and jolted the elected representatives.
Through the 18th and 19th Constitutional Amendments, Parliament made efforts to reassert itself, but little was done to make the judiciary truly independent, capable of delivering justice without delays, or able to impose costs on litigants, particularly governments, for filing frivolous appeals.
26th Constitutional Amendment Weakens Judiciary, Threatens Democracy And Citizens’ Rights
In the wake of 16 March 2009, the erstwhile Supreme Court of Pakistan passed many notable judgments, especially in the Asghar Khan case ( Human Rights Case No 19 of 1996 , decided in 2012, reported as 2012 SCMR 2008), atoning for its past. Regrettably, this decision remains unimplemented to this day. Open defiance of this order and many others—particularly regarding timely elections and seat allocation—testifies to the fact that after the exit of General Pervez Musharraf as President in August 2008, all civilian governments, though claiming to champion democracy, have actually been obeying the real masters.
From 2009 to 2023, the Supreme Court decided many suo motu cases under the erstwhile Article 184(3) of the Constitution (now Article 175E, giving the same powers to the Federal Constitution Court), including elections to be held in Punjab and Khyber Pakhtunkhwa within 90 days, which were openly defied.
There has always been severe criticism from many quarters, especially those in power, that the judiciary has “transgressed its constitutionally defined limits.” In the Panama case, this was the main argument of all three lawyers representing the three-times elected Prime Minister, his family, a close relative, and the Finance Minister, who was also dubbed the de facto Premier, now Deputy Prime Minister and Foreign Minister.
The main reason behind the 26th and 27th Amendments was purportedly the unabated tug-of-war in the Supreme Court regarding the constitution of benches and the selection of cases of public importance. This bewildered almost every citizen of Pakistan. The common people could not expect such vivid divisions among learned men in robes, especially from judges who deviated from the path of those who had once endorsed General Pervez Musharraf’s rule, even giving him the right to amend the Constitution.
27th Constitutional Amendment: A Threat To Judicial Independence And Constitutional Integrity
On 17 September 2023, many thought that the oath of Justice Qazi Faez Isa as the 29th Chief Justice of Pakistan marked a noteworthy shift in the country’s top judiciary. However, it proved to be yet another delusion, much like the myth of “independence of the judiciary” during the restitution of judges on 16 March 2009 and the legacy of Chief Justice Chaudhry Muhammad Iftikhar.
Justice Qazi Faez Isa’s predecessors, including Mian Saqib Nisar , Asif Saeed Khosa , Gulzar Ahmed , and Umar Ata Bandial , elicited widespread criticism for what many alleged as “misplaced judicial activism” or “judicial overreach,” coupled with controversial decisions and subjective interpretations of the Constitution. These decisions proved detrimental and negatively impacted the judiciary’s image. Accusations of collaboration with the military establishment and alignment with political agendas made their legacies questionable, even that of Justice Faez Isa, who retired on 25 October 2024.
In Pakistan, the higher judiciary’s involvement in political matters has overshadowed its responsibility to address public concerns and the plight of common litigants. This imbalance is reflected in the huge backlog of cases in the Supreme Court (now, fortunately, about 50% of these have been transferred to the Federal Constitution Court through the 27th Amendment) and across all judicial levels, underscoring the system’s inefficiency. It highlights the apparent indifference towards the prompt dispensation of justice—a core pillar of democracy.
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According to many, the elevation of Justice Qazi Faez Isa as Chief Justice was a welcome departure from the alleged judicial overreach of his predecessors, but this too proved to be an illusion. Later, the Pakistani nation was optimistic that the 30th Chief Justice, Mr Justice Yahya Afridi , would bring positive reforms to the judicial system by improving access to justice, the quality of judges, and swift dispute resolution. This again proved delusive and ultimately deceptive.
[To be concluded]
(Dr Ikramul Haq, Advocate Supreme Court, Adjunct Faculty at Lahore University of Management Sciences (LUMS), member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE), holds LLD in tax laws. He was full-time journalist from 1979 to 1984 with Viewpoint and Dawn. He also served Civil Services of Pakistan from 1984 to 1996. The Friday Times)
