The Twenty-Seventh Amendment to the Constitution of Pakistan: A Structural Constraint on Judicial Activism and Its Institutional Costs

Abstract
This article offers a critical legal and institutional analysis of the Constitution (Twenty-seventh Amendment) Act, 2025. Its central argument is that the Amendment erects durable structural constraints on judicial activism by transferring core constitutional jurisdiction to a newly created Federal Constitutional Court, reengineering appointment and transfer mechanisms, and extending expansive immunities to top state actors. These design choices not only weaken the conditions for independent adjudication but also degrade checks and balances and reduce democratic accountability. The paper reads the Amendment closely, locates it within Pakistan’s recent constitutional trajectory, teases out the principal doctrinal effects, and assesses the political and institutional costs. It concludes with concrete remedial strategies that combine litigation, legislative reform, and civic mobilisation.

Introduction
On 13 November 2025, Parliament enacted the Constitution (Twenty-seventh Amendment) Act, 2025. The Act inserts a chapter creating a Federal Constitutional Court and purports to make that Court the primary forum for constitutional interpretation and national fundamental rights. The Amendment also recalibrates judicial appointments, weakens procedural protections for judicial transfers and discipline, and grants sweeping immunities to incumbents of the highest offices, including the President and senior military commanders. These changes provoked immediate institutional shock. Two sitting Supreme Court judges resigned in protest and bar bodies, civil society organisations, and international legal monitors issued sharp critiques.

The argument advanced here is simple but consequential. By relocating constitutional policing to a freshly constituted court that will be politically constituted, privileging executive and parliamentary influence over selection, and insulating powerful actors from ordinary legal process, the Amendment does more than tinker with court architecture. It reprogrammes constitutional adjudication, alters the incentives of sitting and future judges, and makes bold judicial intervention considerably less likely. The effects are doctrinal, institutional, and normative. This article proceeds in four parts. First, it reads the Amendment’s operative features. Second, it situates the reform within Pakistan’s jurisprudential history, notably the era of robust suo motu review and the incremental rebalancing begun by the 26th Amendment. Third, it analyses doctrinal and incentive effects. Fourth, it assesses the institutional and political consequences and proposes pragmatic remedial paths.

186. Textual anatomy of the Amendment
     The official Gazette and parliamentary Bill documents reveal a package of tightly interlinked measures. This amendment, in essence, rearranges the judicial system in Pakistan. It establishes a new Federal Constitutional Court (FCC), which takes up powers that had traditionally been held by the Supreme Court (SC) in Articles 184(3) and 186. It will even listen to cases involving constitutional disputes, between provinces, and even electoral litigations, leaving the Supreme Court deprived of its hall mark jurisdiction. Pending matters that fall within the FCC’s competence are to be transferred to that Court. The text fixes the seat and procedures for initial transfers and confers primary power over constitutional adjudication to that institution.

On paper, it is presented as reform. Practically, it disaggregates judicial power, transfers the constitutional powers of the SC to a new institution and clears the way to executive and parliament involvement in the appointment, tenure and transfer of judges. The judges of the High Court may now be assigned without permission (and considered retired in disobedience), and the ruling of the FCC will be binding to the SC.

The appointment architecture is crucial. The Amendment empowers a Special Parliamentary Committee and gives the executive decisive influence in selecting the inaugural Chief Justice and the inaugural cohort of FCC judges. The Judicial Commission of Pakistan retains a role but its influence in the inaugural phase is curtailed by political actors and by in-camera SPC procedures for selection. Parliamentary reports and the Bill text show limited mandatory transparency obligations in the appointment process.

The Amendment weakens procedural protections around transfers and discipline. Consent requirements for high court judge transfers are narrowed. Refusal to accede to an involuntary transfer is made a ground triggering disciplinary inquiry and suspension pending inquiry is formalised as an instrument. The cumulative effect is the insertion of a new leverage architecture into judicial life.

The Amendment also extends extensive immunities. Articleal changes shield the President from criminal proceedings and arrest for life, with only narrow exceptions if the President assumes another public office after leaving office. Parallel protections are extended to senior military leadership and the statute reorganises military command by creating a Chief of Defence Forces and revising tenure and rank privileges for five-star appointees. Those changes enshrine a form of legal insulation for the top of the state.

Taken together, the textual package accomplishes four institutional maneuvres. First, it relocates constitutional policing to a new institutional home. Second, it designs an appointment process that privileges the political branches at a formative moment. Third, it weaponises transfers and disciplinary processes as potential levers of compliance. Fourth, it places a legal bulwark around political and military elites. The 27th Amendment is not, therefore, about the efficiency of the courts and the right to access justice. It is about control. It is concerned with the guarantee of making the last interpreter of the Constitution account, ultimately, not to the law but to the executive.

1. Constitutional and jurisprudential context
   The 27th Amendment must be understood as the latest move in a longer institutional contest over how constitutional review is organized in Pakistan.
2. The era of assertive review
   The restoration of the judiciary after 2007 and the tenure of Chief Justice Iftikhar Muhammad Chaudhry recalibrated the Court’s relationship with the executive. The Supreme Court greatly expanded use of suo motu exercise under Article 184(3) and developed an activist posture on governance, public corruption, and rights enforcement. Landmark episodes such as the NRO litigation showcased the Court’s willingness to review political bargains and to insist on legal accountability for powerful officeholders. Those developments legitimised robust judicial policing in a polity where political checks were often weak or compromised. The literature on Article 184(3) and the NRO judgment documents that trajectory and its institutional consequences.
3. The 26th Amendment as prelude
   Institutional engineers had already begun to reshape the bench-executive balance. The Constitution (Twenty-sixth Amendment) Act, 2024 altered the composition and powers of the Judicial Commission of Pakistan, increased parliamentary influence, and placed procedural constraints on suo motu practice. International legal monitors flagged the 26th Amendment as harmful to judicial independence. In context, the 27th Amendment reads as completion rather than departure. It converts prior procedural and selection shifts into structural reallocation of constitutional jurisdiction.

III. Doctrinal and institutional implications
The Amendment produces three mutually reinforcing mechanisms that blunt the judiciary’s capacity to check power: forum substitution, attenuation of procedural safeguards, and immunity regimes.

1. Forum substitution and jurisprudential reprogramming
   Institutional location matters for doctrinal evolution. Courts are memory institutions. They inherit interpretive styles, remedial repertoires, and institutional practices. Moving gravitational authority over constitutional law into a brand new. Court means that doctrine will be shaped by the formative preferences and institutional incentives of that Court. If initial appointments tilt towards deference, the FCC can, through narrow standards of justiciability, limited remedial strategies, and conservative standing principles, effectively curtail expansionary readings of fundamental rights and executive accountability. The change is therefore not merely institutional housekeeping; it is jurisprudential reprogramming.
2. Procedural erosion as a behavioural tool
   Consent requirements for transfers and robust procedural guarantees against summary suspension have historically protected the individual judge from political sanction and thus preserved a climate for courageous decision-making. Weakening consent and formalising suspension during inquiry transforms these protections into prospective sanctions. This institutional change may make the judge more focused on self-preservation than on constitutional principle, thereby leading to a predictable shift in expected utility towards deference and self-censorship. The legal literature on judicial independence emphasises that procedural safeguards are prophylactic. Removing or diluting them shifts the expected utility of dissent for individual judges. Self-censorship and risk aversion are predictable behavioural outcomes.
3. Immunities and the hollowing of accountability
   Lifetime immunity for Presidents and extended protections for senior military leaders amount to a categorical reduction in the reach of judicial remedies. Immunities operate as exemptions from legal scrutiny and thus weaken ordinary avenues of redress. The jurisprudential consequence is defensive: courts become less able to craft remedies that make the politically powerful answerable. The normative consequence is corrosive: equal application of the law is compromised and public trust in the impartiality of institutions is damaged. The International Commission of Jurists and other monitors described these immunities as a “full frontal assault” on rule of law values.
4. Political and institutional costs
   The Amendment’s design choices produce predictable downstream effects.
5. Judicial behaviour and institutional culture
   Judges adapt. Under the new incentives, judges will be more likely to avoid contentious public interest litigation, to forgo expansive remedies, and to interpret constitutional limits in ways that favour executive latitude. The judiciary itself immediately and unprecedentedly opposed this overhaul of the judicial system. On 13 November 2025, in a dramatic protest, two of the Supreme Court’s most senior respected justices, Mansoor Ali Shah and Athar Minallah, resigned. Justice Shah, in a scathing letter of resignation, termed the amendment a “grave assault” on the Constitution that would equate the judiciary with the executive. Justice Minallah said that the Constitution, which I was swore to uphold, is no more… Their exit is seen as a devastating blow to the court, with two of its strongest voices of independence lost.

The move was immediately condemned by the international legal bodies, including the International Commission of Jurists (ICJ). The ICJ termed the amendment an outrageous assault on the rule of law and the independence of the judiciary, stating that the new appointment procedure for the FCC was not independent of the executive and that modifications would seriously impair the judiciary’s role in checking and balancing the executive.

The inaugural bench’s temperament will be particularly important. If it leans conservative and deferential, that posture will ossify into an institutional habit. The two recent resignations by sitting Supreme Court judges are symptomatic of the moral and institutional rupture that the Amendment risks deepening.

1. Administrative compliance and governance
   When judicial enforcement is seen as attenuated, administrative actors will recalibrate away from strict legal compliance and toward political accommodations. The predictability of law declines, and informal mechanisms of governance and patronage fill the vacuum. This shift compromises both distributive fairness and the rule-bound delivery of public services.
2. Democratic legitimacy and civic trust
   Independent adjudicators sustain democratic accountability and public confidence in constitutional governance. By insulating the most powerful actors and subordinating constitutional adjudication to a potentially politicised Court, the Amendment weakens legitimacy. Popular protests, strikes by bar associations, and the critical statements from human rights organisations and legal scholars indicate an emerging crisis of confidence. The Human Rights Commission of Pakistan and several bar bodies openly expressed concern, though some provincial bar councils expressed conditional support for the creation of a constitutional court. The mixed response among legal institutions underscores the political fragmentation over the Amendment.
3. Normative assessment and remedial strategies
   The 27th Amendment raises acute normative dilemmas. Proponents frame it as procedural modernisation that addresses case load and provincial representation. Critics see a project to entrench executive and military influence. The balance of design choices tilts materially against robust judicial independence.

A principled normative stance recognises two truths. First, judicial activism was sometimes imperfect but often served critical accountability functions in a polity with weak alternative checks. Second, legitimacy is not conferred by formal authority alone. Courts require moral authority to secure compliance and normative purchase. Laws that predispose courts to deference in politically salient matters undermine both the rule of law and institutional trust.

Remedial strategies must be pragmatic, multi-track, and calibrated to institutional realities.

Legal strategies should be strategic. Public interest litigation will remain an instrument even in the new architecture. Litigators should pursue narrow, doctrinally grounded challenges aimed at preserving procedural safeguards. Challenges can target the constitutionality of transfer procedures that allow coercive suspension, the procedural opacity in appointment processes, and the scope of immunities. Focused constitutional arguments that ask the FCC to interpret the Amendment purposively and to preserve core accountability functions may yield defensive jurisprudence.

Legislative strategies are vital. Parliament can, through ordinary statute, adopt binding procedural rules for appointments and transfers: transparent selection criteria, mandatory publication of reasons, and enforceable avenues for recourse. Ordinary law can also require public hearings, publication of candidate shortlists, and stronger protections against summary suspension. Although the political appetite for such reforms is uncertain, piecemeal statutory guardrails can blunt the Amendment’s most corrosive mechanics.

Civic mobilisation must continue. The bar, legal NGOs, and civil society should consolidate documentation of abuses, produce accessible briefs, and build cross-provincial coalitions. Public opinion matters. Reputational costs matter internationally. Peer judiciaries, international bar associations, and human rights bodies can provide technical assistance, issue public statements, and create a record that raises the political cost of capture.

Finally, institutional cultures change only slowly. Judicial leadership that insists on transparent norms and practices within the FCC, even when constrained, can preserve pockets of independence. Defensive legalism and principled restraint can, paradoxically, produce spaces where rights are defended incrementally.

Conclusion
The Constitution (Twenty-seventh Amendment) Act, 2025 is better understood as constitutional architecture than as technical reform. By reallocating constitutional jurisdiction to a newly instantiated Federal Constitutional Court, reshaping appointment and transfer processes, and immunising top officeholders, the Amendment constructs a durable structural brake on the kind of judicial activism that has characterised recent decades. The doctrinal consequence is reprogramming: interpretive habits will be shaped by a politically-constituted inaugural bench. The institutional consequence is predictable: risk aversion by judges, attenuated enforcement, and erosion of public trust. The normative consequence is grave: the law ceases to be, in equal measure, a guard against concentrated power.

Yet the Amendment is not the end of constitutional contentedness. Legal challenges, legislative initiatives, civic pressure, and international normative scrutiny can constrain the most damaging effects. The task ahead requires sustained, sophisticated legal strategy, disciplined civic mobilisation, and normative clarity. The core normative demand is straightforward. Constitutionalism requires accountable power. Where institutional design privileges immunity and political control, the search for accountability must be resumed on many fronts simultaneously.

Bibliography

Legislation

Constitution (Twenty-seventh Amendment) Act 2025, Gazette of Pakistan (13 November 2025)
https://pabalochistan.gov.pk/storage/8816/69174fbda0981_Twenty-seventh-Amendment-Act%2C-2025..pdf accessed 23 November 2025.

Secondary Sources

Al Jazeera
Al Jazeera, ‘How would Pakistan’s 27th Amendment reshape its military and courts?’ (11 November 2025)
https://www.aljazeera.com/news/2025/11/11/how-would-pakistans-27th-amendment-reshape-its-military-and-courts accessed 23 November 2025.

Dawn
Dawn, ‘“Constitution no more”: Justices Shah, Minallah resign from “diminished” SC following passage of 27th Amendment’ (13 November 2025)
https://www.dawn.com/news/1954872 accessed 23 November 2025.

ETH Zurich Centre for Security Studies
ETH Zurich Centre for Security Studies, Pakistan’s Supreme Court and the National Reconciliation Ordinance
https://www.files.ethz.ch/isn/110966/148.pdf accessed 23 November 2025.

The Express Tribune
The Express Tribune, ‘NA approves 27th Constitutional Amendment clause by clause’ (11 November 2025)
https://tribune.com.pk/story/2577064/na-set-to-vote-on-27th-amendment-bill-today-amid-pti-lawyers-outrage accessed 23 November 2025.

The Guardian
The Guardian, ‘Pakistani parliament votes to give army chief new powers and legal immunity’ (12 November 2025)
https://www.theguardian.com/world/2025/nov/12/pakistan-parliament-constitutional-amendment-bill-asim-munir-supreme-court accessed 23 November 2025.

Human Rights Commission of Pakistan
Human Rights Commission of Pakistan, ‘Statement on the 27th Constitutional Amendment’ (23 November 2025), published in Dawn
https://www.dawn.com/news/1956888 accessed 23 November 2025.

International Commission of Jurists
International Commission of Jurists, Pakistan – dismantling justice: a full-frontal assault on the rule of law (13 November 2025)
https://www.icj.org/pakistan-dismantling-justice-a-full-frontal-assault-on-the-rule-of-law/ accessed 23 November 2025.

International Commission of Jurists, Pakistan: 26th constitutional amendment is a blow to the independence of the judiciary (21 October 2024)
https://www.icj.org/pakistan-26th-constitutional-amendment-is-a-blow-to-the-independence-of-the-judiciary/ accessed 23 November 2025.

Nabi, Sami Zafar
Nabi SZ, ‘A Story of Suo Motos, Judicial Activism, and Article 184(3)’ (2015) arXiv
https://arxiv.org/pdf/1502.03772.pdf accessed 23 November 2025.

Naseer, Ghalib
Naseer G, Judicial Activism: Authority or Autocracy? Unravelling the Role of Judiciary in Pakistan (SSRN Electronic Journal, January 2025)
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5194287 accessed 23 November 2025.

Pakistan Today
Pakistan Today, ‘Karachi lawyers protest 27th Amendment, warn SC’s authority at stake’ (23 November 2025)
https://www.pakistantoday.com.pk/2025/11/23/karachi-lawyers-protest-27th-amendment-warn-scs-authority-at-stake/ accessed 23 November 2025.

Parliament of Pakistan
Parliament of Pakistan, ‘The Constitution (Twenty-seventh Amendment) Bill, 2025 (as introduced in the Senate)’ (Senate of Pakistan)
https://www.senate.gov.pk/uploads/documents/1762598611_995.pdf accessed 23 November 2025.

Reuters
Reuters, ‘Pakistan’s top court meets after two judges quit in protest at “grave assault” on constitution’ (14 November 2025)
https://www.reuters.com/world/asia-pacific/pakistans-top-court-meets-after-two-judges-quit-protest-grave-assault-2025-11-14/ accessed 23 November 2025.