27th Constitutional Amendment: A Critique of Pakistan’s Judiciary

Independently written and published by Shahbaz Shah Legal Journal.

Executive assessment

The Constitution (Twenty-seventh Amendment) Act, 2025 is not a minor procedural adjustment. It redesigns Pakistan’s superior judicial structure by establishing the Federal Constitutional Court of Pakistan, transferring major constitutional powers away from the Supreme Court, changing the hierarchy of precedent, altering the transfer regime for High Court judges, and seeking to exclude judicial review of constitutional amendments on every ground.

A specialised constitutional court is not inherently inconsistent with democracy or judicial independence. It can produce focused constitutional jurisprudence, reduce the Supreme Court’s mixed workload, and give public-law disputes a dedicated institutional forum. The real constitutional question is therefore not whether Pakistan may have such a court. It is whether the court has been designed, staffed, and protected in a manner that secures decisional independence, institutional legitimacy, access to justice, and a stable relationship with the Supreme Court and High Courts.

On that test, the amendment contains both a defensible institutional idea and serious structural weaknesses. Equal provincial representation, a specialised jurisdiction, and a clearer separation of constitutional work may improve adjudication. But the special executive-led process for the first appointments, compulsory High Court transfers backed by disciplinary consequences, an asymmetric precedent rule, automatic movement of pending cases, and the absolute wording of Article 239(5) create substantial risks. The amendment’s success will depend less on the name of the new court and more on whether transparent rules and restrained constitutional practice can cure those risks.

What is the 27th Constitutional Amendment?

The Act received presidential assent and was published in the Gazette of Pakistan on 13 November 2025 as Act XXXII of 2025. Its scope extends beyond the judiciary, but this article is confined to the provisions that restructure courts and constitutional adjudication.

The official parliamentary record shows an unusually compressed legislative sequence. The Bill was considered by the joint law and justice committees on 8 November, passed by the Senate on 10 November, passed with amendments by the National Assembly on 12 November, approved again by the Senate on 13 November, and assented to on the same day.

Speed does not by itself invalidate a constitutional amendment. It does, however, matter to legitimacy. A design that divides the work of the apex court, transfers pending litigation, changes judicial appointments, removes a judge’s consent to inter-court transfer, and attempts to close judicial review deserved sustained public consultation, detailed institutional evidence, and careful transition planning. The parliamentary timeline left little visible space for that level of scrutiny.

The new Federal Constitutional Court

New Articles 175B to 175L create the Federal Constitutional Court. It consists of a Chief Justice and such number of judges as Parliament may determine or, until then, the President may fix. The Constitution requires an equal number of judges from each Province and at least one judge from the Islamabad High Court.

The qualifications are broad. A judge may be drawn from the Supreme Court, from a High Court after at least five years of judicial service, or from the practising bar where the person has at least twenty years’ High Court advocacy and is an advocate of the Supreme Court.

The Court’s principal jurisdiction includes:

• exclusive original jurisdiction in disputes between governments;
• fundamental-rights jurisdiction in a matter of public importance, exercised on an application rather than without one;
• power to call for a case pending before any court where a substantial question of constitutional interpretation arises;
• appeals involving constitutional interpretation and appeals from Article 199 judgments where leave is granted;
• review of its own judgments; and
• advisory opinions on references made by the President.

The permanent seat is Islamabad, although sittings elsewhere may be arranged with presidential approval. Judges retire at sixty-eight. The Chief Justice has a three-year term or serves until resignation, removal, or age sixty-eight, whichever occurs first.

The Supreme Court after the amendment

The amendment does not abolish the Supreme Court. It narrows and refocuses it. Article 184, which previously contained the Supreme Court’s original jurisdiction, is omitted. Articles 186 and 186A, dealing with advisory jurisdiction and transfer of cases, are also omitted, while Article 191A on the Supreme Court’s constitutional benches is removed.

The Supreme Court remains the apex forum for the civil and criminal appellate work left to it under Article 185. But constitutional matters falling within Articles 175E and 175F now belong to the Federal Constitutional Court. Pending constitutional petitions, appeals, and reviews covered by the new provisions stand transferred to the new Court.

This is a fundamental division of apex judicial power. Pakistan no longer has one final court exercising the full range of ordinary and constitutional jurisdiction. It has a Federal Constitutional Court at the top of constitutional adjudication and a Supreme Court at the top of the remaining appellate structure.

Possible benefits of the new structure

1. Specialisation can improve constitutional reasoning

Constitutional cases often require sustained attention to institutional competence, federalism, fundamental rights, democratic structure, remedies, and the long-term effect of precedent. A dedicated court may develop expertise and more coherent doctrine instead of addressing constitutional questions within an already heavy civil and criminal docket.

Specialisation may also allow the Supreme Court to decide ordinary appeals more quickly. If the allocation rules are clear and the new court receives adequate judges, research support, and case-management systems, both courts could become more focused.

2. Provincial representation can broaden institutional confidence

Article 175B requires equal judicial representation from each Province and at least one judge from the Islamabad High Court. That formula acknowledges that constitutional adjudication affects a federation and should not appear geographically concentrated.

Representation alone is not independence, and a provincial quota should not displace merit. Properly applied, however, the requirement can bring different legal and institutional experiences to the constitutional bench and strengthen public confidence across the Federation.

3. An application requirement limits uncontrolled suo motu action

Article 175E(3) allows the Court to enforce fundamental rights in matters of public importance but requires an application by a person. That responds to longstanding concerns that unstructured suo motu jurisdiction can blur the roles of litigant, investigator, and adjudicator, and can produce orders without a complete adversarial record.

The application requirement is a sound safeguard if standing rules remain sufficiently open for genuine public-interest litigation. It should prevent judge-selected controversies without closing the courthouse to persons acting for communities that cannot easily litigate for themselves.

4. A distinct constitutional appellate path may improve clarity

Article 175F directs constitutional appeals to one court. In principle, lawyers and litigants should know that an Article 199 appeal or a certified constitutional question belongs to the Federal Constitutional Court rather than competing benches within the Supreme Court.

That benefit will materialise only if legislation and rules define mixed cases. Many disputes contain constitutional, statutory, civil, criminal, tax, service, or regulatory issues at the same time. Without a disciplined allocation mechanism, the promised clarity may turn into preliminary litigation over which apex court has jurisdiction.

The central constitutional concerns

1. The first appointments carry an executive-origin problem

The ordinary constitutional promise is that appointments proceed through the Judicial Commission under Article 175A. The amendment makes a special exception for the birth of the new court. The President, acting on the Prime Minister’s advice, appoints the first Chief Justice from among Supreme Court judges. The first batch of judges is also appointed by the President on the Prime Minister’s advice, in consultation with the first Chief Justice.

An institution’s first composition is unusually important. Its earliest judges set procedural culture, control initial benches, receive transferred cases, and establish precedents that Article 189 makes binding even on the Supreme Court. Allowing the executive a decisive role at precisely that founding stage creates an avoidable legitimacy deficit.

Consultation with the first Chief Justice is not the same as a transparent, criteria-based selection by an independent commission. Even if every first appointee acts with complete independence, the design permits a reasonable public concern that the political branches influenced the tribunal that will review constitutional action. A constitutional court must not only be independent; its method of creation must make that independence credible.

2. Two apex courts create a difficult hierarchy

Article 189 now provides that a decision of the Federal Constitutional Court on a question or principle of law binds every other court, including the Supreme Court. A Supreme Court decision binds all courts except the Federal Constitutional Court.

This removes doubt about which court is final in constitutional matters, but the language is broader than a simple subject-matter rule. It refers to any question or principle of law decided by the Federal Constitutional Court. A constitutional appeal may include questions of evidence, procedure, limitation, taxation, service law, or criminal law. If the Federal Constitutional Court’s rule on those incidental matters binds the Supreme Court, the constitutional court may become generally superior rather than only constitutionally final.

The structure also lacks an obvious mechanism for resolving overlap. If the Supreme Court has already settled a non-constitutional rule and the Federal Constitutional Court later addresses it in a constitutional case, Article 189 places the latter above the former. Predictability requires rules requiring the new court to confine binding rulings to matters necessary for its constitutional jurisdiction and to use an enlarged bench before departing from an established Supreme Court rule.

3. Compulsory transfer threatens High Court independence

Before the amendment, the official constitutional text stated that a High Court judge could not be transferred to another High Court without the judge’s consent. The substituted Article 200 authorises transfer by the President on the recommendation of the Judicial Commission. The Commission may hear the judge, but consent is no longer required.

More seriously, a judge who does not accept transfer must face proceedings under Article 209 within thirty days and may not perform judicial functions until the Supreme Judicial Council decides the matter. Article 209 is also amended so that refusal of transfer becomes an express ground for proceedings.

The power can be defended as a way to meet institutional needs, balance vacancies, or respond to genuine administrative problems. But transfer is capable of affecting a judge’s family, professional life, seniority environment, docket, and future path to leadership. If used without narrow criteria, it can also alter the composition of a court before politically sensitive litigation or punish an inconvenient judge without formally removing that judge.

Judicial independence protects litigants, not judicial privilege. A transfer regime should therefore require a demonstrated institutional need, published criteria, adequate notice, a genuine opportunity to respond, a reasoned recommendation, protection against loss of seniority, and review for mala fides or procedural unfairness. Treating non-acceptance as presumptive misconduct and immediately stopping judicial work is disproportionate unless refusal is shown to obstruct a lawful and necessary administrative measure without reasonable cause.

4. Refusal of elevation can operate as forced retirement

Article 206 provides that a High Court judge who declines appointment to the Federal Constitutional Court or Supreme Court, or a Supreme Court judge who declines appointment to the Federal Constitutional Court, is deemed to have retired.

An appointment to a different court is not a neutral promotion in every case. The courts have distinct jurisdictions, institutional cultures, retirement ages, and leadership structures. A judge may have principled reasons to remain in the court to which that judge was constitutionally appointed. Deemed retirement turns an offered appointment into pressure and may make the executive and appointment bodies indirect participants in removing judges from their existing offices.

At minimum, the law should distinguish a voluntary nomination from an appointment made without prior written acceptance. No judge should be nominated to another court in a manner that converts a refusal into automatic departure from office.

5. Automatic transfer of cases risks delay and lost continuity

Articles 175E and 175F transfer covered petitions, appeals, and review applications from the Supreme Court and its former constitutional benches to the Federal Constitutional Court. Jurisdictional transition was unavoidable once the new structure was chosen, but a constitutional command that cases “forthwith” stand transferred does not answer practical questions.

Who certifies the complete record? What happens where hearings were substantially concluded? Are previous interim orders preserved? How are limitation, court fees, counsel authorisations, paper books, and connected non-constitutional appeals handled? What happens when one proceeding contains issues belonging to both apex courts?

For litigants, institutional reform is not successful if a pending fundamental-rights case returns to the beginning. Transition rules should preserve completed steps, identify a single electronic case number, continue lawful interim protection, and publish a case-by-case transfer register. The burden of moving between courts should fall on the institutions, not on citizens.

6. Article 175E(5) needs disciplined case-selection rules

The Federal Constitutional Court may call for the record of a case pending before any court where it considers that a substantial question of constitutional interpretation is involved and may make such order as it thinks fit.

This power can prevent inconsistent constitutional rulings and allow an important question to be resolved promptly. It can also interrupt an ordinary trial, remove a case from its normal appellate route, or allow the constitutional court to select disputes on a very broad standard.

Rules should require notice to all parties, a written statement of the constitutional question, reasons why the ordinary process is inadequate, and an assessment of whether the entire case or only the legal question should be transferred. The Court should exercise the power exceptionally and avoid deciding disputed facts that remain better suited to the original forum.

7. Article 199 access depends on constitutional benches

The amendment reinforces that only a constitutional bench of a High Court may exercise Article 199 jurisdiction. Specialised benches can improve consistency, but access to constitutional relief depends on their number, location, roster, and sitting schedule.

Article 199 is the everyday constitutional remedy against unlawful detention, excess of public power, failure of public duty, and breach of fundamental rights. If too few judges are nominated, or constitutional benches sit only at a principal seat, specialisation may produce delay and geographic inequality. High Courts should publish stable rosters, ensure access at benches where litigants ordinarily file, and provide urgent arrangements for habeas corpus and time-sensitive fundamental-rights cases.

8. The Article 239(5) bar is the amendment’s deepest rule-of-law problem

The substituted Article 239(5) declares, notwithstanding anything in the Constitution and any judgment, that no court has jurisdiction to question a constitutional amendment on any ground whatsoever.

This wording seeks an absolute result. It is not confined to the merits of a duly enacted amendment. Read literally, it may attempt to exclude review even of whether the mandatory constitutional procedure was followed, whether the required majority existed, whether the authenticated text is the text actually passed, or whether an asserted amendment is legally an amendment at all.

The concern is especially acute because the same amendment restructures the courts that might be asked to examine it. A political majority changed the reviewing institution, selected a special route for its first appointments, and simultaneously declared the entire amendment beyond judicial question.

This analysis does not assume that a court will invalidate the amendment or predict how Article 239 will ultimately be interpreted. The narrower point is institutional: a Constitution governed by law should retain some forum capable of determining whether the Constitution’s own amendment procedure was obeyed. Parliamentary supremacy in amendment-making is different from immunity for a document that may not have been constitutionally enacted.

A restrained safeguard would preserve judicial examination of procedural compliance, authenticity, and the irreducible requirements of judicial independence while maintaining a high threshold against courts substituting their policy preferences for Parliament’s amending judgment.

9. Different retirement ages may distort institutional incentives

Federal Constitutional Court judges retire at sixty-eight, while the Supreme Court’s retirement rule remains sixty-five. A higher retirement age may preserve experience and reduce turnover. But where sitting Supreme Court judges may be appointed to the constitutional court, the three-year difference can create an incentive attached to movement between institutions.

Appointment should be understood as selection for constitutional suitability, not an extension of tenure. Transparent criteria, prior consent, and a clear bar against appointment decisions based on pending cases are essential to prevent the retirement-age difference from affecting judicial behaviour or public confidence.

10. Constitutional design was combined with unrelated high-stakes subjects

The Act also made significant changes outside the judicature, including amendments concerning the command of the Armed Forces and other constitutional offices. Combining distinct institutional projects in one constitutional package reduces the ability of Parliament and the public to assess each proposal on its own merits.

A vote in favour of one reform necessarily became a vote for every other provision. Future constitutional practice should separate major subjects, publish explanatory memoranda, and provide adequate time for bar associations, provinces, judges, universities, and civil society to respond before final passage.

What safeguards are now required?

The amendment is in force. The practical task is to make constitutional adjudication as independent, accessible, and predictable as possible. The following safeguards should be adopted through legislation, rules, and institutional practice:

• publish objective appointment criteria, candidate experience, conflicts, and reasoned recommendations while protecting legitimate personal privacy;
• require written consent before a judge is nominated for appointment to another superior court;
• confine High Court transfers to demonstrated administrative necessity and provide notice, a hearing, reasons, seniority protection, and a remedy against bad faith;
• create joint rules between the Federal Constitutional Court and Supreme Court for mixed-jurisdiction cases, connected appeals, records, limitation, and interim orders;
• require an enlarged Federal Constitutional Court bench before departing from an established Supreme Court precedent or deciding a question that affects the Supreme Court’s core jurisdiction;
• publish all transferred cases, status dates, bench assignments, and disposal data in a searchable public register;
• maintain regional sittings, electronic filing, urgent-duty arrangements, and accessible procedures for public-interest and fundamental-rights litigation;
• require reasoned orders before calling a pending case under Article 175E(5);
• report separately on constitutional-case age, institution, disposal, reserved judgments, and compliance with final orders; and
• reconsider the absolute wording of Article 239(5) so that at least procedural validity, authenticity, and judicial independence remain legally examinable.

Practical effect for lawyers and litigants

For constitutional practitioners, forum selection is now a threshold question. A petition under Article 199 begins in a High Court constitutional bench, while an appeal from its judgment ordinarily requires leave from the Federal Constitutional Court. Counsel must identify whether a case falls within Article 175F, whether any connected ordinary appeal remains for the Supreme Court, and whether a substantial constitutional question should be framed separately.

For pending matters, lawyers should verify the official transfer status rather than assume that an earlier Supreme Court number remains active. Interim orders, limitation, filing defects, connected cases, and the completeness of the record should be checked immediately.

For trial and appellate courts, Article 189 now requires careful identification of the source of binding precedent. Federal Constitutional Court decisions bind every court, including the Supreme Court. Supreme Court decisions remain binding except on the Federal Constitutional Court. Courts should distinguish the actual legal rule necessary to the decision from observations outside the case’s constitutional issue.

For litigants, the reform should not mean paying twice or restarting litigation. Courts must make the transfer process administrative, preserve effective access, and communicate which institution now controls the case.

Is the 27th Amendment good or bad for the judiciary?

The answer cannot honestly be reduced to approval or rejection of a constitutional court. The model has potential. Specialisation, provincial representation, application-based fundamental-rights jurisdiction, and division of workload can strengthen constitutional justice.

The weaknesses, however, concern the conditions that make specialisation legitimate. A constitutional court whose first composition carries strong executive influence, whose precedents are placed above the Supreme Court in broad language, and whose creation is accompanied by compulsory transfer powers and an absolute review bar begins with a heavier burden of proving independence.

The most serious danger is institutional control rather than institutional separation. If appointments are transparent, benches are stable, jurisdiction is restrained, transfers are exceptional, and judgments consistently enforce rights against every branch of government, the Court can earn authority. If selection and transfer powers are used strategically, no constitutional label will protect public confidence.

Conclusion

The 27th Constitutional Amendment marks the largest recent redistribution of judicial power in Pakistan. It replaces the Supreme Court’s former constitutional centrality with a dual-apex structure led, on constitutional questions, by the Federal Constitutional Court.

Its strongest promise is focused constitutional adjudication. Its greatest weakness is that several provisions capable of influencing judges and cases were adopted together with a clause seeking complete immunity from judicial examination. That combination makes independence, transparency, and procedural restraint indispensable.

The future of the amendment will be decided not only by constitutional text but by appointments, transfers, bench formation, case allocation, access, and the quality of reasons given in politically difficult cases. A new court can become a guardian of the Constitution only if it demonstrates independence from those who created it and equal fidelity to the rights of those who approach it.

This commentary is independent legal analysis for research and general information. It focuses on the judicial provisions of the amendment and does not determine the validity of the Act or predict the outcome of any pending constitutional challenge. Readers should verify the official Gazette and current constitutional text before relying on any provision in proceedings.