Amending the Guardians: Constitutional Amendments, Judicial Independence and the Separation of Powers in Pakistan

Abstract

Pakistan’s top judiciary has been reshuffled twice in just over a year. The Twenty-sixth Amendment (2024) integrated parliamentarians into the Judicial Commission of Pakistan, substituted seniority with parliamentary selection of the Chief Justice and established constitutional benches. The Twenty-seventh Amendment (2025) established a Federal Constitutional Court whose rulings are binding on the Supreme Court and removed the requirement that a High Court judge agree to transfer. The article asks whether these changes maintain effective checks and balances. Based on doctrinal analysis of the Constitution, amending Acts and leading judgements of the Supreme Court and High Courts including Al-Jehad Trust (1996), Sindh High Court Bar Association (2009) and District Bar Association, Rawalpindi (2015) and a functional comparison with India, the United Kingdom, South Africa and Germany, it identifies five minimum conditions of judicial independence that are recognised in Pakistani law. It concludes that the amendments maintain judicial review and tenure in form but erode four of those conditions, most significantly protection from arbitrary transfer and a meaningful judicial voice in appointments. The article does not argue against the legitimacy of political involvement in judicial appointments. Instead, it proposes ten safeguards most of which can be achieved without further amendment, such as supermajority voting and published reasons in the Judicial Commission, criteria-based transfers, collegial bench formation in the new court, and a more deliberative amendment process. These are intended to strengthen judicial independence while maintaining democratic accountability of the judiciary.