ISLAMABAD:
As the curtain falls on 2025, legal experts increasingly view the year as one of the bleakest 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 call the year 2025 a complete disaster for the judiciary. Initial hopes that the courts could push back and restore institutional balance gradually faded as a series of judicial and constitutional developments aligned with the government’s agenda.
When the current regime managed to pass the 26th constitutional amendment in October last year, with the help of then Chief Justice Qazi Faez Isa, expectations arose that the Supreme Court under Justice Yahya Afridi would resist encroachments on judicial independence and act as a counterweight to the executive.
However, expectations were soon dashed. Judges in key positions appeared to fully support the executive agenda, particularly on issues relating to the appointment and transfer of judges.
The SC could not even decide on petitions challenging the 26th constitutional amendment, which authorized a parliamentary committee to select the chief justice of Pakistan from among three senior judges. The resolution of these petitions was generally considered essential to guarantee 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 resolution of these petitions was generally considered essential to safeguard judicial independence.
Instead, the government bypassed the three senior judges and nominated Justice Aminuddin Khan as the head of the Constitutional Benches (CB). This was followed by the appointment of a majority of judges perceived to be aligned with the government to these courts.
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 petitions challenging the 26th constitutional amendment.
Interestingly, the committee proceeded to list the cases in which the executive requested help, with results consistently favorable to the current government.
First, the Constitutional Chamber overturned a previous Supreme Court ruling and upheld the prosecution of civilians in military courts.
Secondly, it overturned a Supreme Court ruling that had held that the PTI was entitled to reserved seats after the February 8 elections.
That decision allowed the current government to obtain a two-thirds majority in the National Assembly.
During the outgoing year, the government also initiated 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 for the transfer of three judges to the IHC.
Five IHC judges, who had earlier 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 with malafide and driven by the federation’s desire to punish serving IHC judges and effect a “takeover” of a high court.
However, the constitutional court headed by Justice Muhammad Ali Mazhar, in its majority decision, confirmed 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 tinged with malice and was aimed at taking control of the Islamabad High Court.
The five judges of the IHC subsequently filed an intra-judicial appeal against the majority ruling, but the matter could not be settled for hearing before the passage of the 27th constitutional amendment.
Following the transfer decision, Transferee Judge Sardar Muhammad Sarfraz Dogar was appointed as the Chief Justice of the Islamabad High Court. He had previously served as IHC’s acting chief justice.
Judge Dogar did not disappoint the executive after his promotion. Observers noted that the PTI failed to obtain any substantial compensation during its 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 rule on these requests. Similarly, the Adiala jail authorities did not comply with IHC orders regarding Imran Khan’s meetings with party leaders and others.
Faced with a growing perception that the higher judiciary was giving ground, the government went ahead and passed the 27th constitutional amendment in November. Under the amendment, the SC’s jurisdiction to interpret the Constitution, hear matters of public interest and resolve key legal issues 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, and its decisions are 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 Chief Justice of Pakistan was maintained through the constitutional amendment.
Following the passage of the 27th Amendment, Supreme Court Justices Syed Mansoor Ali Shah and Athar Minallah resigned from their positions. Lahore High Court Judge Shams Mahmood Mirza also tendered his resignation.
Notably, no visible resistance emerged from the higher judiciary to stop the 27th amendment, despite its far-reaching implications for judicial independence.
More recently, Tariq Mehmood Jahangiri, a signatory of the six judges’ letter, was removed from office by the IHC on the grounds that his title was invalid. However, the matter was already pending before the Sindh High Court, a fact the IHC reportedly ignored.
Since the passage of the 26th constitutional amendment, judges who were not in the good books of the current regime have reported growing insecurity, and many of them have been marginalized by their own colleagues.
