Pakistan continues to make experiments with its constitution as it fails to find an equilibrium in its constitutional system where de facto and de jure power can be accommodated without losing its republican and democratic status.
Courts in Pakistan while trying to save the constitution and its basic features from further erosion now find themselves helpless as parliament exercising its amending power has made roads into the judicial power by bifurcating it and then controlling its exercise. In this situation there is little room for arguments in favour of protecting and saving the substance of democracy, constitutionalism and rule of law as form has taken over substance.
Even the best constitution may fail to prevent authoritarianism. Germany between the two world wars became a fascist state, despite Hitler having come to power through democratic means. In recent times, populism has once again entered politics, swaying people to vote for leaders or parties that may erode democratic institutions and lead to authoritarian rule. Social media, mass media and algorithm-driven echo chambers can easily manipulate public opinion.
The fundamental safeguard, however, lies in strong checks and balances, where power is exercised as a sacred trust and duty, supported by a culture of free debate and deliberation. Democracy can survive if these principles are upheld. Constitutional documents must be treated as inviolable, and the will of the people must remain their soul.
The equilibrium – between form and substance, between legal frameworks and lived reality – has historically been absent in Pakistan. This is largely because the people of Pakistan never truly possessed, nor were granted, ownership of the country’s fundamental law.
From 1947 to 1956, Pakistan operated under the Government of India Act, 1935 – an interim constitution enacted by the British Parliament and adapted with minimal changes, mainly in names and titles. This Act was designed to serve colonial interests and envisaged authoritarian rule, concentrating power in the hands of the governor-general.
This authoritarian legacy continued, as reflected in key judicial decisions: in the Tamizuddin Khan case (1955), where the dissolution of the Constituent Assembly by the governor-general was upheld; in the Muhammad Saeed case (1957), where election delays were justified; in Dosso (1958), where the court imported revolutionary theory to validate the abrogation of the constitution; and in Mehdi Ali Khan (1959), where denial of fundamental rights under martial law was legitimised. The common thread in all these decisions – and in many that followed – was the persistent denial of the people's right to self-rule.
The latest manifestation of this de facto and de jure collusion is the 26th Amendment. The legal fraternity agrees that for all intents and purposes, there is no difference from the earlier PCOs and post PCOs constitutional amendments that granted indemnity to legal instruments passed during martial law regimes. There is however one difference. This time around, parliament voted in favour of an amendment to further erode judicial independence.
Although not openly acknowledged, there appears to be an underlying psychological motive behind the self-justifying beliefs of those who defend this amendment on the grounds of parliamentary supremacy. In reality, it is the constitution and the will of the people that are supreme. Their justification often serves to silence occasional pangs of conscience, allowing them to believe they are acting in the national interest. Judges who appear independent are, in their view, simply misguided – incapable of understanding their duty or appreciating what they define as the national interest.
Meanwhile, the people, who fund the salaries and privileges of all elite segments in Pakistan through heavy taxation, remain systematically excluded. Their legal cases often remain pending for decades. The phrase "We, the people of Pakistan", followed by lofty declarations made through "our chosen representatives" to adopt and enact this constitution, carries little substantive meaning. Fundamental rights and the right to vote under Article 51 remain elusive – mirages that are promised but never realised.
The jurisdiction of the Constitutional Bench has been defined under Article 191A (3) and (5), while that of the high courts is outlined under Article 202A – both introduced through the 26th Amendment. Rather than requiring fresh oaths, this amendment has effectively stripped certain judges of the Supreme Court and high courts of their judicial authority. Constitutional and advisory jurisdiction under Articles 184 and 186, as well as all appeals and petitions – whether fresh or pending – that involve constitutional questions, will now be decided by Constitutional Benches appointed by majority vote of the Judicial Commission of Pakistan (JCP), as constituted under Article 175A. The JCP consists of 13 members, and the executive can secure a majority if just one judge or the chief justice sides with them.
If the Constitutional Bench is headed by someone other than the chief justice, it is likely – based on current voting patterns – that the head will align with the executive. If the chief justice does lead the bench, then in the event of an unfavourable decision, another judge, as mentioned in clause (ii) of Article 175A(2), may vote him out in pursuit of the influential position of Constitutional Bench head.
The first Constitutional Bench, consisting of seven members and excluding the two most senior judges as well as the chief justice, was formed on November 5, 2024. It was expanded to 13 members on February 28, 2025, again excluding certain senior judges. The Constitutional Bench issues a separate cause list and has its own committee for case assignment, which does not include the chief justice of Pakistan.
Although no separate data is available, the CB has reportedly been in session for an average of three hours a day, five days a week. From November 2024 to June 2025, it has decided very few cases, as reflected in the orders published on the Supreme Court’s website. Despite its mandate to interpret and expound the constitution, this function appears to be largely absent from the cases it has handled. Meanwhile, the case backlog in the Supreme Court stands at 56,147.
The history of constitutional experiments in Pakistan – each introduced with seemingly good intentions and lofty claims – reveals that the political and constitutional framework remains mired in the tension between de facto and de jure authority, a condition that has repeatedly fostered instability. A just and fair political order, grounded in firm constitutional principles and based on the primacy of the people in state affairs, is essential for political stability. Such stability, in turn, is a prerequisite for sustainable growth and the achievement of economic sovereignty.
This ideal can be approached through reflection or through revolutions. However, revolutions often end up being regressive.
The writer is an advocate of the Supreme Court and former
additional attorney general for Pakistan. He can be reached at: mwaqarranayahoo.com