Pakistan’s 27th Constitutional Amendment: Dismantling Judicial Independence—A Critical Analysis for Constitutional Lawyers

 

Executive Summary

The Pakistan’s 27th Constitutional Amendment, enacted in November 2025, represents a watershed moment in constitutional jurisprudence marked by institutional resistance from the judiciary itself. Within hours of President Asif Ali Zardari’s approval of the amendment, two senior judges of Pakistan’s Supreme Court—Justice Mansoor Ali Shah and Justice Athar Minallah—tendered their resignations in an extraordinary act of institutional protest. These resignations, accompanied by starkly worded letters, highlight the amendment’s profound erosion of judicial independence and separation of powers. For constitutional lawyers practicing in India, this case study illuminates critical principles regarding the immutability of fundamental constitutional structures and the limits of amendatory power.

I. Historical Context: The Trajectory of Pakistan’s Constitutional Amendments

A. The 26th Amendment as Precursor

Pakistan’s path to the 27th constitutional amendment began with the 26th Constitutional Amendment of October 2024, which introduced preliminary modifications to the judicial appointment process. This earlier amendment:

• Granted Parliament a constitutionally enhanced role in the appointment of the Chief Justice
• Created a senior judges’ panel to hear certain constitutional cases
• Significantly eroded the autonomy traditionally vested in the judiciary for self-governance

Justice Mansoor Ali Shah’s resignation letter explicitly references the 26th Amendment as a deliberate campaign to systematically dismantle judicial independence. He noted that he had remained in office following the 26th Amendment, “hoping the Supreme Court would rise as a Full Court to reclaim constitutional supremacy.” This hope, he concluded, “has now been extinguished” with the passage of the 27th Amendment.

B. The Democratic Legitimacy Question

Both amendments were passed through the formal democratic process with the requisite two-thirds parliamentary majorities. The Pakistan’s 27th constitutional amendment secured approval from:

• National Assembly: Passed on November 12, 2025, with a two-thirds majority
• Senate: Approved on November 13, 2025, after a second round of voting (64 votes in favor, 4 against)
• Presidential Assent: Secured on November 13, 2025

This procedural legitimacy, however, masks substantive constitutional violations—a dichotomy that lies at the heart of modern constitutional theory regarding the limits of amendment power.

II. Substantive Content and Structural Changes Introduced by the Pakistan’s 27th Constitutional Amendment

A. The Federal Constitutional Court Architecture

The centerpiece of the 27th Amendment is the creation of the Federal Constitutional Court (FCC), which fundamentally reconfigures Pakistan’s judicial hierarchy:

Jurisdiction Transfer:

• The FCC assumes exclusive authority over all constitutional matters
• The Supreme Court is divested of its traditional role in hearing constitutional and fundamental rights cases
• The FCC gains jurisdiction over inter-provincial and federal-provincial disputes
• The Supreme Court is relegated to hearing only civil and criminal cases

Hierarchical Inversion:
The amendment creates an institutional hierarchy inverse to traditional common law structures. Justice Shah characterized this arrangement as “entirely alien to the common-law world,” observing that judges appointed to the FCC would sit in a court “created not by constitutional wisdom, but by political expediency.”

B. Dismantling of Suo Motu Powers

The amendment abolishes the suo motu powers of the Supreme Court—a critical tool historically deployed to investigate executive excesses and military misconduct. This limitation represents a fundamental departure from constitutional courts’ supervisory jurisdiction.

The suo motu power had been instrumental in:

• Investigating administrative corruption and institutional malfeasance
• Protecting fundamental rights without formal petitions
• Checking executive overreach through proactive constitutional intervention

C. Executive Dominance in Judicial Appointments

The FCC’s composition and appointment mechanism reveals the amendment’s true architecture:

• Chief Justice of FCC: Appointed by the President on the Prime Minister’s advice
• FCC Judges: Government-appointed with dominant executive involvement
• The amendment explicitly indicates that “the executive will have a dominant role in their selection”

This departure from merit-based, insulated appointment processes—traditionally the hallmark of independent courts—directly contradicts constitutional principles protecting judicial autonomy.

D. Military Powers Consolidation

Beyond the judicial sphere, the amendment introduces significant military institutional changes:

• Creates the new post of Chief of Defence Forces
• Grants the Army Chief constitutional supremacy over Pakistan’s armed services
• Abolishes the post of Chairman of the Joint Chiefs of Staff Committee (CJCSC)
• Provides constitutional immunity to top military officials from criminal prosecution

These provisions, while ostensibly structural, reflect the amendment’s broader agenda of concentrating power within executive-military institutional complexes at the judiciary’s expense.

III. The Unprecedented Judicial Resistance: Resignations as Constitutional Protest

A. Justice Mansoor Ali Shah’s Principled Stand

Justice Shah’s 13-page resignation letter crystallizes the constitutional objections to the amendment. Key excerpts illuminate his reasoning:

On the Amendment’s Assault on Constitutional Democracy:

“The Twenty-Seventh Constitutional Amendment stands as a grave assault on the Constitution of Pakistan. It dismantles the Supreme Court of Pakistan, subjugates the judiciary to executive control, and strikes at the very heart of our constitutional democracy—making justice more distant, more fragile, and more vulnerable to power.”

On Judicial Independence Doctrine:

“Continuing in such a version of the Supreme Court of Pakistan would only suggest that I bartered my oath for titles, salaries, or privileges.”

On Institutional Diminishment:

“Serving in such a truncated and diminished court, I cannot protect the Constitution, nor can I even judicially examine the amendment that has disfigured it.”

Justice Shah’s resignation was premised on a fundamental constitutional principle: a judge cannot maintain institutional integrity while functioning in a court stripped of its constitutional role. His departure represents not personal protest but principled institutional resistance grounded in oath and constitutional doctrine.

B. Justice Athar Minallah’s Constitutional Symbolism

Justice Minallah’s resignation, while shorter, encapsulates the symbolic dimension of judicial capitulation:

“The Constitution that I swore an oath to uphold and defend is no more. Much as I have tried to convince myself otherwise, I can think of no greater assault on its memory than to pretend that, as new foundations are now laid, they rest upon anything other than its grave. For, what is left of it is a mere shadow—one that breathes neither its spirit, nor speaks the words of the people to whom it belongs.”

This resignation frames the amendment not merely as institutional reform but as constitutional death—a transformation so fundamental that the resulting document bears no continuity with its predecessor.

C. Critical Judicial Commentary on Current Leadership

Justice Shah’s letter contains scathing criticism of the incumbent Chief Justice Yahya Afridi, alleging that despite judicial legitimacy being “under challenge,” the Chief Justice:

• Assented to the amendment without principled resistance
• Negotiated only the preservation of his own position and title
• Failed to convene a full court meeting despite requests from multiple justices, bar associations, and senior lawyers

This institutional critique reveals fractures within the judiciary itself regarding the appropriate response to constitutional violation.

IV. Comparative Constitutional Analysis: India’s Protective Framework

A. The Basic Structure Doctrine as Constitutional Immune

India’s Supreme Court, in the landmark Kesavananda Bharati v. State of Kerala (1973), established the Basic Structure Doctrine, which protects fundamental constitutional features from amendment. This doctrine identifies certain constitutional provisions as immutable, including:

• Separation of Powers among legislative, executive, and judicial branches
• Judicial Independence as integral to constitutional functionality
• Rule of Law and constitutional governance

The Indian Supreme Court has consistently held that while Article 368 grants the Parliament power to amend the Constitution, this amendatory power cannot be exercised to destroy the Constitution’s basic structure. Judicial independence stands as a core element of this immutable architecture.

In S.P. Gupta v. Union of India (1981), the Court reaffirmed:

“Independence of the judiciary is the sine qua non for the enforcement of rule of law and constitutional supremacy.”

B. Judicial Appointments in India: Insulation from Executive

The Memorandum of Procedure (MoP) governing judicial appointments in India reflects constitutional commitment to judicial autonomy:

• The Chief Justice of India plays a determinative role in appointing judges to higher courts
• While the President formally makes appointments, judicial input is constitutionally protected through established protocols
• The collegium system, despite reforms, maintains judicial primacy in the selection process

This contrasts starkly with the 27th Amendment’s framework, which explicitly vests appointment authority in executive institutions with judicial participation relegated to advisory status.

C. Suo Motu Powers and Constitutional Vigilance

Articles 32 and 226 of the Indian Constitution confer both original and suo motu powers on the Supreme Court and High Courts respectively. These provisions enable courts to:

• Initiate proceedings for constitutional violations independent of formal petitions
• Intervene in matters affecting public interest and fundamental rights
• Investigate institutional malfeasance without awaiting litigant action

The Indian judiciary has leveraged these powers to establish constitutional supremacy, as exemplified in cases involving environmental protection, prison reforms, and fundamental rights enforcement. The 27th Amendment’s abolition of suo motu powers represents a diametric reversal of this jurisprudential commitment.

D. Unamendability Jurisprudence and Structural Limitations

In L. Chandra Kumar v. Union of India (1997), the Supreme Court held that Article 368 cannot be employed to abridge the constitutional jurisdiction of superior courts. The Court established:

“The Constitution cannot be amended in such a manner as to emasculate its basic features or destroy the constitutional scheme.”

This principle suggests that even amendments formally complying with procedural requirements may be struck down if they violate constitutional essentials—a doctrine Pakistan’s judiciary appears not to have invoked prior to the crisis.

V. Critical Constitutional Defects in the 27th Amendment

A. Violation of Separation of Powers Doctrine 

The separation of powers doctrine, recognized globally and affirmed in both Pakistani and Indian constitutional jurisprudence, requires institutional insulation preventing any branch from dominating others. The 27th Amendment violates this principle through:

Executive Encroachment on Judicial Independence:

• Executive appointment dominance in the FCC structure
• Presidential authority to constitute the FCC’s judicial composition
• Prime ministerial discretion in chief justice selection
• Removal of constitutional checks (suo motu powers) limiting executive action

Institutional Subordination:
By positioning the FCC above the Supreme Court and vesting its composition in executive hands, the amendment creates a judicial hierarchy subordinate to political control rather than constitutional principle.

B. Abolition of Constitutional Review Capacity

The amendment’s transfer of constitutional jurisdiction to an executive-controlled body functionally abolishes meaningful judicial review. The Supreme Court, stripped of constitutional case jurisdiction, cannot:

• Examine the validity of executive action against constitutional provisions
• Enforce fundamental rights through constitutional petitions
• Review legislative enactments for constitutionality
• Adjudicate center-provincial constitutional disputes

This transformation converts the apex court into a specialized civil-criminal tribunal, divesting it of its constitutive institutional role in constitutional governance.

C. Immutability Violations and the Basic Structure

Pakistani constitutional jurisprudence has recognized, parallel to India’s Kesavananda Bharati doctrine, that judicial independence constitutes a basic structural element protected from amendment. The 27th Amendment directly contravenes this principle by:

• Fragmenting the apex court’s unity
• Subjecting judicial composition to executive discretion
• Eliminating constitutional vigilance mechanisms
• Creating institutional hierarchies that subordinate courts to political authority

D. Immunity Provisions and Rule of Law Erosion

The amendment’s provisions granting constitutional immunity to military and executive officials represent a comprehensive assault on rule of law principles:

• Article 248 immunity extended for top military officials prevents criminal accountability
• Immunity provisions create executive classes insulated from constitutional constraint
• The rule of law—premised on equal accountability—is fundamentally undermined

VI. Institutional Implications and Democratic Governance Impact

A. Captured Judiciary Doctrine

Legal scholar Makhdoom Ali Khan characterized the amended structure as creating “a parallel authority insulated from the very rule of law it is sworn to defend.” This captured judiciary model reflects patterns observed in constitutional degradation globally:

Structural Capture Mechanisms:

• Appointment of judges compliant with executive preferences
• Elimination of institutional independence in judicial decision-making
• Creation of parallel courts preventing constitutional review
• Removal of suo motu powers limiting institutional initiative

B. Provincial Autonomy Erosion

The amendment’s centralization of constitutional jurisdiction in a federally controlled FCC undermines Pakistan’s federal structure established by the 18th Amendment (2010), which enhanced provincial autonomy. The Khyber Pakhtunkhwa provincial government, led by the Pakistan Tehrik-e-Insaf (PTI), explicitly characterized the amendment as:

“Blatant usurpation of powers” and “robbery of provincial autonomy”

This represents a constitutional counter-revolution against the federalization achieved in earlier constitutional reforms.

C. Precedent and Constitutional Mutation

The 27th Amendment establishes dangerous precedent permitting systematic constitutional erosion through successive amendments. The two-amendment strategy:

1. First Amendment (26th): Introduces preliminary judicial controls (appointment role expansion)
2. Second Amendment (27th): Implements comprehensive institutional subordination

This incremental approach circumvents resistance that might crystallize against more dramatic single amendments, permitting constitutional transformation through procedurally compliant but substantively revolutionary measures.

VII. Practical Implications for Indian Constitutional Practitioners

A. Cautionary Lessons for Judicial Independence

For Indian legal practitioners, the Pakistani case study illuminates several critical constitutional principles:

1. Procedural Legitimacy vs. Substantive Constitutionalism

The 27th Amendment’s formal compliance with procedural requirements (super-majorities, bicameral approval, presidential assent) did not prevent substantive constitutional violation. This dichotomy suggests that:

• Amendatory procedures alone cannot guarantee constitutional integrity
• Judicial vigilance regarding amendment substance remains essential
• Courts must develop doctrinal frameworks preventing disguised constitutional destruction

2. The Immutability of Judicial Independence

India’s Basic Structure Doctrine specifically protects judicial independence from amendment. Pakistan’s crisis validates this approach, demonstrating that:

• Without doctrinal protection for judicial independence, judiciary becomes subordinate to political majorities
• Constitutional essentials cannot be reformed through normal amendment procedures
• Judicial resistance, as manifested through the resignations, reflects constitutional necessities rather than institutional territoriality

3. Vigilance Against Incremental Constitutionalism

The two-amendment strategy employed in Pakistan suggests that systematic constitutional erosion may proceed through measured increments rather than dramatic gestures. Indian judiciary should:

• Monitor amendment sequences for cumulative constitutional impact
• Assess whether successive amendments constitute hidden constitutional transformation
• Apply Basic Structure Doctrine to recognize concealed attacks on constitutional essentials

B. Litigation Strategy Considerations

For legal practitioners facing governmental institutional overreach, the Pakistani resignations underscore several strategic considerations:

Ethical Obligations and Institutional Integrity:
Judges may face situations where professional ethics require resistance to institutional corruption. Justice Shah’s framework suggests that:

• Continuing to function in unconstitutional institutional arrangements constitutes ethical violation
• Oath obligations may compel institutional resistance
• Silence regarding constitutional wrong amounts to complicity

Collegial Institutional Response:
The resignations’ impact derived partly from their coordinated nature. Indian practitioners advocating constitutional positions should:

• Seek collegial professional association support
• Mobilize bar associations and legal professional organizations
• Frame constitutional positions as institutional imperatives, not individual preferences

C. Comparative Constitutional Argument

The 27th Amendment provides powerful comparative constitutional precedent for Indian advocacy:

• Negative precedent: Demonstrates consequences of inadequate constitutional protection for judicial independence
• Judicial resistance model: Illustrates forms of institutional opposition to constitutional violation
• Basic Structure validation: Validates India’s protective doctrinal framework

Indian legal arguments can reference the Pakistan case to demonstrate:

• Necessity of immutable constitutional protections for judicial independence
• Inadequacy of procedural safeguards against substantive constitutional violation
• Judicial necessity doctrine requiring institutional resistance to constitutional degradation

VIII. Critical Questions for Constitutional Jurisprudence

The 27th Amendment raises foundational constitutional questions relevant to both Pakistani and Indian legal systems:

1. Amendment Power Limits: Can procedurally correct amendments violate constitutional essentials? What doctrinal frameworks identify immutable constitutional cores?
2. Judicial Resistance Legitimacy: Under what circumstances does institutional judicial resistance to government action constitute constitutional necessity rather than institutional overreach?
3. Captured Judiciary Doctrine: How do constitutional frameworks prevent systematic judicial subordination to political control through formally democratic procedures?
4. Federal Constitutional Courts: How do parallel constitutional court structures affect judicial independence and constitutional review capacity?
5. 5. Resignation as Constitutional Act: Do judicial resignations constitute legitimate forms of institutional constitutional resistance, or do they represent institutional abdication?

IX. Normative Framework: Principles for Constitutional Resilience

The Pakistani crisis suggests several normative principles for constitutional systems seeking to maintain judicial independence:

A. Constitutional Essentialist Doctrine

Core Principle: Identify and constitutionally protect fundamental structural elements resistant to amendment, including:

• Judicial independence as institutional autonomy
• Separation of powers as governmental structure
• Fundamental rights as protected categories
• Constitutional review as institutional capacity

B. Appointment Insulation Protocols

Core Principle: Insulate judicial appointments from direct executive discretion through:

• Merit-based selection mechanisms
• Collegial judicial participation in appointment decisions
• Transparent, publicly justified appointment criteria
• Institutional restraint from political appointment criteria

C. Constitutional Vigilance Protection

Core Principle: Protect courts’ capacity for constitutional vigilance through:

• Preservation of original and suo motu jurisdictions
• Constitutional review authority over all governmental action
• Fundamental rights protection mechanisms
• Inter-branch conflict resolution authority

D. Institutional Resistance Framework

Core Principle: Permit and protect institutional judicial response to constitutional violation, including:

• Collegial opposition to unconstitutional governmental action
• Institutional statements regarding constitutional concerns
• Judicial resignations as principled constitutional acts
• Coordinated professional association opposition

Conclusion

Pakistan’s 27th Constitutional Amendment represents a watershed moment in contemporary constitutional law, demonstrating how procedurally legitimate amendments can constitute substantive constitutional violations. The unprecedented resignations of Justices Mansoor Ali Shah and Athar Minallah signal an extraordinary breakdown in constitutional governance, wherein the judiciary itself rejects the institutional framework created by law.

For Indian constitutional practitioners, the case study validates core constitutional principles:

First, judicial independence constitutes an immutable constitutional essential that cannot be reformed through ordinary amendment procedures. The Basic Structure Doctrine remains essential doctrine preventing disguised constitutional destruction.

Second, separation of powers requires institutional insulation preventing executive dominance over judicial composition and decision-making. The 27th Amendment’s executive appointment mechanisms illustrate the capture mechanisms that must be doctrinally prohibited.

Third, constitutional review capacity represents a fundamental institutional requirement for constitutional governance. Abolishing sua moto powers and constitutional jurisdiction strips courts of constitutional guardianship functions essential to constitutional supremacy.

Fourth, procedural legitimacy cannot substitute for substantive constitutionalism. Formal compliance with amendment procedures does not cure substantive constitutional violations affecting basic governmental structures.

The resignations themselves embody a principle transcending institutional self-interest: that judges bear oath obligations to constitutional principles superseding institutional convenience. This principle, while institutionally extraordinary, reflects constitutional necessities when ordinary institutional mechanisms fail to prevent constitutional violation.

For Indian constitutional systems, the Pakistani case reinforces the wisdom of doctrinal protections ensuring that constitutional reform operates within constitutional limits. The Basic Structure Doctrine, sometimes criticized as judicial overreach, emerges as essential constitutional protection against precisely the systematic constitutional degradation witnessed in Pakistan.

As Justice Shah concluded in his resignation letter, judges faced with unconstitutional institutional arrangements confront a binary choice: “to remain in a system where the Court’s foundations had been destroyed, or to step down in protest.” The extraordinary resignations signal that when constitutional governance itself becomes corrupted, institutional resistance becomes constitutional duty.

References

[1] “Judicial independence crippled”: Two Pakistan Supreme Court judges resign after passage of 27th Constitutional Amendment Available at :https://www.tribuneindia.com/news/world/judicial-independence-crippled-two-pakistan-supreme-court-judges-resign-after-passage-of-27th-constitutional-amendment/

[2] How the 27th Amendment has shifted Pakistan’s power balance and given Asim Munir unprecedented authority Available at: https://www.moneycontrol.com/world/how-the-27th-amendment-has-shifted-pakistan-s-power-balance-and-given-asim-munir-unprecedented-authority-article-13674657.html/amp

[3] Doctrine of Separation of Powers Available at: https://www.drishtiias.com/daily-updates/daily-news-analysis/doctrine-of-separation-of-powers-1

[4] Twenty-seventh Amendment to the Constitution of Pakistan Available at: https://en.wikipedia.org/wiki/Twenty-seventh_Amendment_to_the_Constitution_of_Pakistan

[5] Supreme Court judges Mansoor Ali Shah, Athar Minallah resign after passage of 27th Amendment Available at: https://tribune.com.pk/story/2577278/supreme-court-judges-mansoor-ali-shah-athar-minallah-resign-after-passage-of-27th-amendment