ISLAMABAD:
As the curtain falls on 2025, the year is increasingly seen by legal experts as one of the darkest for judicial independence, following the passage of the 26th and 27th constitutional amendments and the continued consolidation of executive dominance over the higher judiciary.
Throughout the year, the executive remained firmly in control, leading many observers to characterize 2025 as an unmitigated disaster for the judiciary. Early hopes that the courts would respond and restore institutional balance gradually faded as a series of judicial and constitutional developments aligned with the government’s agenda.
When the current regime succeeded in passing the 26th constitutional amendment in October last year, with the facilitation of the then Chief Justice Qazi Faez Isa, the Supreme Court, headed by Chief Justice Yahya Afridi, was expected to resist encroachments on judicial independence and act as a check and balance on the executive.
But expectations were quickly disappointed. Judges in key positions appeared to fully support the executive agenda, particularly with regard to issues regarding the appointment and transfer of judges.
The SC could not even rule on petitions challenging the 26th constitutional amendment, which allowed a parliamentary committee to choose the chief justice of Pakistan from among three senior judges. The adjudication of these motions was widely seen as essential to ensuring judicial independence.
Importantly, the SC did not rule on petitions challenging the 26th constitutional amendment, which empowers a parliamentary committee to choose the chief justice of Pakistan from among three senior judges. The outcome of these motions was widely seen as essential to safeguarding judicial independence.
Instead, the government bypassed the three most senior judges and appointed Justice Aminuddin Khan as head of the Constitutional Courts (CB). This was followed by the appointment of a majority of judges perceived to be aligned with the government to these benches.
A three-member committee headed by Justice Aminuddin Khan, with Justice Jamal Khan Mandokhail and Justice Muhammad Ali Mazhar as members, did not give priority to fixing the petitions challenging the 26th Constitutional Amendment.
Interestingly, the committee then listed cases in which the executive sought relief, with results consistently favorable to the current government.
First, the constitutional bench overturned an earlier Supreme Court judgment and approved the trial of civilians in military courts.
Second, it overturned a SC judgment that the PTI was entitled to reserved seats after the February 8 elections.
This decision allowed the current government to obtain a two-thirds majority in the National Assembly.
Over the past year, the government has 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 their consent to the transfer of three judges to the IHC.
Five IHC judges, who had previously written to the Supreme Judicial Council alleging agency interference in judicial matters, strongly opposed the transfers, calling them a violation of judicial independence.
They approached the SC, arguing that the executive plan was tainted by bad faith and motivated by the federation’s desire to punish sitting IHC judges and carry out a “takeover” of a high court.
However, the constitutional bench headed by Justice Muhammad Ali Mazhar, in its majority decision, upheld the transfer of the three judges. The question of seniority of judges was also submitted to the president for decision.
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 with malice and aimed at taking control of the Islamabad High Court.
Subsequently, the five IHC judges filed an intra-judicial appeal against the majority decision, but the case could not be scheduled for a hearing before the passage of the 27th Constitutional Amendment.
Following the transfer order, transferee Judge Sardar Muhammad Sarfraz Dogar was appointed as the Chief Justice of the Islamabad High Court. He had previously served as Acting Chief Justice of the IHC.
Justice Dogar did not disappoint the executive following his elevation. Observers noted that the PTI had failed to secure any substantial relief during its tenure. PTI leaders even approached the IHC for an early hearing on the applications for suspension of sentence filed by Imran Khan and Bushra Bibi in the Al-Qadir Trust case.
Despite several months, the IHC has not ruled on these requests. Similarly, Adiala jail authorities did not comply with IHC orders regarding Imran Khan’s meetings with party leaders and others.
With the judiciary increasingly seen as giving ground, the government went ahead and passed the 27th constitutional amendment in November. Under this amendment, the SC’s jurisdiction to interpret the Constitution, hear cases of public interest, and decide 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 as the first Chief Justice of the FCC just two weeks before his retirement.
The FCC has now become the supreme court, with its decisions binding on all courts, including the SC, which has effectively been reduced to an appellate forum.
Despite these changes, the appointment of Justice Yahya Afridi as the Chief Justice of Pakistan was preserved through the constitutional amendment.
Following the passage of the 27th Amendment, SC Justices Syed Mansoor Ali Shah and Athar Minallah resigned from their posts. Lahore High Court judge Shams Mahmood Mirza also tendered his resignation.
It is worth noting that no visible resistance has emerged from the higher judiciary to stop the 27th Amendment, despite its far-reaching implications for judicial independence.
Most 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 diploma. However, the case was already pending before the Sindh High Court, a fact the IHC allegedly ignored.
Since the adoption of the 26th constitutional amendment, judges perceived to be out of favor with the current regime have reported growing insecurity, with many being sidelined by their own colleagues.
