In Pakistan’s turbulent democracy, few institutions have long held a semblance of reputation for independence and resilience like the judiciary. But in the last few years, this institution has been under siege from within, engineered by the deep state that has learned over the years how to shape outcomes through constitutional subterfuge, political manipulation, and coercive pressure. Ironically, the Judiciary has also played its role in augmenting power of the establishment and elevating it to the very top of the power hierarchy in Pakistan, all in the name of ‘doctrine of necessity’.
Today, as in the past, the military’s influence over Pakistan’s civilian institutions is no secret. From overseeing national identity databases to controlling water and energy sectors, retired and serving generals have come to dominate every conceivable civilian domain, be it NADRA (National Database and Registration Authority), which maintains various sensitive databases, or WAPDA (Water and Power Development Agency), which manages hydropower and water resources of the country. Yet, at times, the judiciary has tried to push back and act as a forum where state overreach could occasionally be challenged. That power seems to be eroding very fast.
The 26th Amendment: Constitutional Engineering and Judicial Restructuring
Over the last few years, Pakistan’s judiciary is being reshaped through constitutional engineering, with the passing of the 26th Amendment in October 2024. To start with, the ruling Pakistan Muslim League-Nawaz (PML-N) and its allies did not have the required numbers to push through a constitutional amendment on their own. As such, it was the military establishment which, as reports suggest, brokered behind-the-curtain bargains to get the likes of Maulana Fazlur Rehman, to back the legislation, and rushed it through the National Assembly (October 21, 2024) and enacting it as a law the other day (October 21). Interestingly, the main opposition party, Pakistan Tehrik-e-Insaf (PTI) was also persuaded to partly moderate its stand on the amendment.
Passed with political manipulation, this Amendment has significantly altered how constitutional benches are formed and how judicial appointments are made. More importantly, it also divested the Office of the Chief Justice of Pakistan (CJP) of the power to form constitutional benches or take suo moto notice unilaterally. These powers were seen as two critical levers of judicial autonomy, something the military establishment failed to influence most often. The establishment’s frustration with the judiciary was palpable during the tenure of CJP Umar Ata Bandial, who was seen as “lenient” towards former prime minister Imran Khan and his party, PTI.
Diluting the Chief Justice’s Powers
Under this amendment, the CJP’s powers have been substantially diluted with a newly created system that gives the executive and legislature, both increasingly subservient to the military establishment, a greater control over judicial processes. The consequence has been a quiet but deliberate formation of “constitutional benches”, including a High Court puisne as a provincial nominee, that are perceived to rule favourably on issues sensitive to the military, while internal critics are sidelined or punished.
Take the recent 19 June meeting of the Judicial Commission of Pakistan (JCP), which oversees appointments and extensions, that extended the tenure of the Constitutional Benches until November 30, 2025. The extension was granted despite serious warnings from senior judges who perceived JCP’s decision with scepticism as it was made behind closed doors, with questions raised over transparency in the voting process. It may be recalled that the same bench received an extension by a narrow vote (7-6) last year (December 2024) despite the opposition from most of the Supreme Court judges who were part of the selection panel. The senior jurists of the country demanded that all SC judges be made part of the constitution benches, except for Justice Aminuddin Khan, who went on to preside over the bench and has been seen as favourable to the establishment.
Justice Mansoor Ali Shah, one of the more respected voices in the judiciary, has raised a red flag. In a letter addressed to the commission members before the recent meeting, the senior supreme court judge warned that the bench’s continued existence, despite the constitutional ambiguity surrounding the 26th Amendment, “further deepens the institutional crisis and weakens the court’s legitimacy.” He noted the absence of transparent criteria for nominating judges to the Constitutional Bench and urged that all Supreme Court justices be included to ensure fairness and cohesion, a sentiment shared by a majority of SC judges, evidenced by their December voting in the commission. His appeal, like others before it, was ignored.
Patterns of Judicial Intimidation
What makes these developments disturbing is that they do not take place in a vacuum, with the military establishment having for years been accused of relying on extra-legal ways of surveillance, blackmail, and coercion to bend the judiciary to its will. The infamous 2007 scandal of the Inter-Services Intelligence (ISI) operatives gathering compromising material on several SC judges as President General Pervez Musharraf battled legal challenges to his presidency stands as one example. It was revealed that at least three of the eleven judges hearing the case and seen as independent-minded were pressurised through these tactics.
More recently, Justice Shaukat Aziz Siddiqui was ousted from office for his accusations against the ISI during a speech at the Rawalpindi Bar Association in 2018. In his remarks, Justice Siddiqui claimed that the intelligence agency had been manipulating court outcomes by forcing judges to decide in favour of the military establishment through bribery and threats. (Un)Surprisingly, the Supreme Judicial Council removed him from the service instead of taking note of his accusations. Justice Siddiqui had to wait until 2024 to be vindicated by a Supreme Court bench that ruled his removal “illegal” and restored his status as a ‘retired’ judge, while acknowledging that he had not even received a fair hearing.
One of the most damning indictments came in March 2024, when a letter from six serving judges of the Islamabad High Court to the Supreme Judicial Council of Pakistan became public, detailing at least seven specific instances when the family members of the High Court judges were abducted, kept under surveillance, or tortured to pass verdicts favourable to the military. One such case involved a judicial bench hearing a plea against former Prime Minister Imran Khan in the Tyrian White (his rumoured daughter out of relationship with Sita White) case, wherein two of the three judges who deemed the case ‘non-maintainable’ were allegedly threatened through their family members and social connections. The signatories to the letter explicitly blamed “operatives of the ISI” for the pressure, noting the use of sophisticated surveillance within judicial residences. As such, this was not mere interference but an institutionalised intimidation.
Implications for Pakistan’s Constitutional Order
These revelations cast a long shadow over the 26th Amendment and the formation of Constitutional Benches. Through its control over the executive and legislature, the military has created a mechanism to infiltrate and reshape the judiciary without overtly declaring martial law or suspending the Constitution. The judicial appointments process has been weaponised, not to ensure merit or impartiality, but to maintain a judiciary that is pliant, fragmented, and predictable.
The absence of objective criteria for who sits on constitutional benches only compounds the issue, thereby making the system ripe for abuse with no performance metrics or nomination transparency. The executive, acting at the behest of the military, can reward compliant judges with inclusion on powerful benches while isolating or transferring those who dissent.
The implications for Pakistan’s constitutional order are severe. The judiciary is not merely a check on state power but the arbiter of constitutional legitimacy in a democracy. If it becomes an extension of the very forces it is supposed to restrain, the entire framework of democratic governance not only loses legitimacy but also becomes susceptible to its outright collapse. As Justice Mansoor Ali Shah rightly cautioned, “proceeding with extensions or reappointments to a Constitutional Bench whose very legal foundation is under serious constitutional challenge” only accelerates the erosion of legitimacy.
Conclusion
What is unfolding in Pakistan is not just judicial erosion but, in essence, constitutional regression. This has transformed the 26th Amendment into a Trojan horse, which on one side may appear reformative but functions as no more than a tool of authoritarian consolidation. It allows the military to exercise its control through parliamentary procedure and judicial endorsement, erasing the line between civilian and military spheres. As such, the legal order of Pakistan is not merely being slowly weakened, it is being reconfigured to serve the shadowy yet ever-present military establishment that has taken an overt role in the recent years aided by a pliant political executive.
Therefore, for any democratic retrieval, Pakistan needs a serious public and political reflection over the 26th Amendment, that could lead to a mechanism that insulates judicial appointments from the executive and military influence. In a country where dissent is frequently criminalised; elections are mostly engineered; and the press is largely muzzled; the judiciary has been the last flicker of constitutional hope. Today, that flicker seems to be fading, and unless urgent reforms are undertaken, it may be extinguished altogether, and by then, the democratic regression would reach a point of no return.
Mohmad Waseem Malla is a Research Fellow at the International Centre for Peace Studies, New Delhi, where he also serves as the Associate Editor of its quarterly Journal of Peace Studies (JPS). He holds a doctorate in International Studies from Jawaharlal Nehru University, New Delhi. He is also the founder of Middle East Outlook, an online platform dedicated to research on International Affairs, with a particular focus on Middle East and North Africa (MENA). The views expressed here are personal.
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