Malik M. Ashraf
The judiciary is considered the most sanctimonious institution of the state which plays a pivotal role in nation-building by upholding the rule of law, protecting fundamental rights, as well as the constitution and laws enacted by the parliament of the country. Through this defined role, it helps in fostering national unity, promoting good governance, maintaining social and political stability, as well as promoting socio-economic development.
The judiciary, while dispensing justice, has to remain within the ambit of the constitution enacted by the parliament. As such, it can neither overlord the parliament nor challenge its authority to amend any provision of the constitution as per Article 239(5–6) that enables the parliament to ensure that all institutions, including the judiciary, remain within the domain of their powers as well as make changes in the constitution to cope with emerging challenges and new ground realities. All written constitutions of the world establish the ascendency of the parliament through this provision. Reforms in the judiciary had become absolutely essential due to the snowballing judicial activism that transcended constitutional limits, consigning the country to perennial instability.
For seventy-seven years, Pakistan’s judiciary has stood at the center of nearly every constitutional crisis the country has endured. It validated four military coups, disqualified multiple elected prime ministers, rewrote economic policy from the bench, and repeatedly inserted itself into political and administrative matters far beyond judicial jurisdiction. The result was not the strengthening of democracy, but the steady erosion of it.
What parliament has finally done through the 26th and 27th Constitutional Amendments is not an attack on judicial independence; it is a long-delayed correction to a decades-old imbalance of power. It is the culmination of years of unconstitutional indiscretions through which the judiciary increasingly styled itself as Pakistan’s supreme governing authority, capable of overruling elected governments, setting administrative priorities, determining political outcomes, and acting as moral police. The era of judicial hyperactivism, most intensely symbolized by the tenure of Chief Justice Saqib Nisar, made this impossible to ignore. He directly intervened in areas ranging from water pricing to medical staffing, from sugar oversight to public sector hospital management. Routine governance froze because officials were unsure whether their decisions would be reversed or they would be publicly humiliated in court.
The consequences of this style of judicial populism were not just administrative; they were economic as well. The Reko Diq case stands as the most visible symbol of unnecessary judicial intervention. The Supreme Court’s decision to void the mining agreement with Tethyan Copper Company, defended as a patriotic act at the time, ultimately resulted in a USD 5.9 billion penalty against Pakistan at the International Centre for Settlement of Investment Disputes.
The Nisar era was only one expression of a deeper institutional problem. The Supreme Court’s claim to ultimate political authority long preceded and long outlived him. In 2017, the Court disqualified an elected prime minister on a technical point that became internationally infamous: a salary “not withdrawn.” The moral framing of that judgment relied, bizarrely, on The Godfather rather than constitutional principles or financial law.
Later, under Chief Justice Umar Ata Bandial, the perception of judicial partiality reached new heights. When Imran Khan walked into the Supreme Court after being arrested in the Al-Qadir Trust case, the Chief Justice greeted him with the now famous line: “nice to see you.” For supporters, it was civility. For critics, it was confirmation of a long-held suspicion that some political actors were treated as protégés while others were treated as problems.
These episodes were not isolated. Over the years, benches appeared to form and dissolve according to political moment and personality. Governments were removed mid-term through judicial decisions whose reasoning was contested even within the Court. Suo motu powers were used in ways that blurred the line between adjudication and administration. And the “master of the roster” authority concentrated near-dictatorial power in the hands of the Chief Justice, allowing one individual to decide which cases mattered, which judges heard them, and what political direction the Court would take.
By 2023–2024, the perception of judicial neutrality had collapsed. The Court’s internal divisions spilt into public view. The judiciary appeared less like an institution and more like a collection of warring ideological factions acting as political arbiters. This was not sustainable for a democracy. It was not sustainable for investment, governance, or constitutional order. It left the country in a constant state of political uncertainty: governments unsure whether they would survive a court ruling, markets unsure what the legal landscape would be, and citizens unsure whether the law was a shield or a weapon. The 27th Amendment completed the transformation by creating a Federal Constitutional Court to handle constitutional matters. It has justifiably curtailed the ability of the Supreme Court to intervene unpredictably in political crises and prevented constitutional interpretation from being monopolised by ever-shifting judicial alliances.
The resignations by Justices Mansoor Ali Shah and Athar Minallah on the ground that they perceived an existential threat to judicial independence are being termed principled dissents by their defenders, while their detractors call them symbolic gestures after years of selective outrage. Regardless of where one stands, their resignations underscore the central truth: the judiciary was not reformed because it was functioning well. It was reformed because it had become ungovernable, internally divided, externally political, and structurally unaccountable.
Pakistan could no longer afford a judiciary that toppled governments, disrupted governance, interfered in administration, and treated constitutional text as a tool for political engineering. Therefore, the judicial reckoning was not optional. It was an overdue compulsion. A democratic system cannot function when elected governments live under the permanent shadow of judicial unpredictability. Nor can an economy thrive when courts can upend billion-dollar contracts on opaque grounds. Nor can institutions mature when judges see themselves as national saviors rather than constitutional umpires.
The 26th and 27th Amendments therefore mark the end of an era, the era in which the Supreme Court saw itself as Pakistan’s ultimate political authority. Whether these reforms lead to a healthier balance of power will depend on what the executive and parliament do next. But one thing is certain: Pakistan could not move forward without confronting the cost of judicial supremacy. The reckoning was inevitable. And now that it has begun, the country has a chance, if it chooses, to finally build a constitutional order in which every institution stays within its lane, and where democracy, not judicial drama, sets the nation’s direction.
The writer is a freelance columnist. He can be reached at ashpak10@gmail.com
