Lawyer Asad Rahim Khan filed a petition with the Supreme Court (SC) seeking to challenge the recently enacted 27th Constitutional Amendment, moving the court to declare the amendments unconstitutional and to “take measures” to ensure judicial independence.
The 27th Amendment, signed into law earlier today by President Asif Ali Zardari, was widely criticised by the legal fraternity for abolishing judicial independence through the formation of a Federal Constitutional Court (FCC).
SC Justices Mansoor Ali Shah and Athar Minallah resigned earlier this evening, in response to the 27th Amendment, which “diminished” the apex court.
Khan’s petition, a copy of which is available with media, requested that the Supreme Court declare Sections 2, 4, 5, 6, 7, 9, 10, 12, 14 to 43, 45A and B, 46 and 48 of the Constitution (Twenty-seventh Amendment) Act, 2025 illegal and unlawful, as it violated Entry 55 of the Federal Legislative List, read with other provisions of the Constitution.
According to the petition, Entry 55 “ensures a horizontal separation between the legislative and judicial branches” by defining the jurisdiction of the apex court. The petition moved the SC to declare that its jurisdiction cannot be abolished by an act of parliament.
Additionally, Khan moved the SC to “direct the respondent (the Federation of Pakistan) to take such measures as may be required for securing the independence of the judiciary; and such further or better relief as may be appropriate in the facts and circumstances of the case may also be granted”.
“The parenthetical clause (“except for the Supreme Court”) makes it abundantly clear that the Apex Court’s jurisdiction — unlike that of the courts below it — cannot be interfered with, let alone abbreviated, through any kind of legislation, even an amendment to the Constitution,” the petition read.
Noting that the act was passed in haste and an “unconstitutional and procedurally defective manner”, Khan argued that rushing the bills through parliament violated key principles of parliamentary democracy and was neither public nor transparent.
“The act is thus an assault on parliamentary democracy itself, and merits being struck down on this score alone.”
He further argued that the amendment is enabling the “influencing and purging [of] independent-minded Judges of the Supreme Court and the high courts” and stated that a judge’s position depending on the whim of the executive is antithetical to judicial independence.
The petition also argued that the composition of the FCC — a key component of the 27th Amendment — was “equally alarming”, as the chief justice would be appointed by the president on the prime minister’s advice, but without any deliberation or consultation.
“This permits the executive to handpick the de facto highest judicial authority in Pakistan, in direct violation of the principle of judicial independence,” Khan argued.
“The initial cohort of FCC judges is likewise to be appointed solely on executive advice, again without any role for the judiciary or any consultative mechanism. A court constituted entirely at the will of the executive cannot claim independence.”
Senate’s approval
The president’s assent to the legislation came hours after the Senate approved the bill for the amendment after voting on it for a second time amid the opposition’s protest.
Announcing the result, Senate Chairman Yousuf Raza Gilani said 64 votes had been cast in favour of the bill and four against it. “So the motion is carried by the votes of not less than two-thirds of the total membership of the Senate, and consequently, the bill stands passed.”
The house first voted on the bill clause by clause and then by division. While clause-by-clause voting was under way, slogans of aain ki tabahi, na manzoor (destruction of the Constitution, unacceptable) filled the house, prompting Gilani to say at one point, “No slogans”.
The bill was initially presented in the Senate for voting on Monday and passed the same day. It was then referred to the NA, which approved it with some amendments yesterday. Therefore, the proposed legislation was again presented in the Senate today to consider the latest changes.
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