Constitutionally Capturing Pakistan’s Constitutional Courts
In 2024, Pakistan’s parliament passed a constitutional amendment carrying out the most significant restructuring of Pakistan’s superior judiciary in its recent history. Pakistan is the latest in a series of states from Turkey, Hungary and Poland in the 2010s, to Mexico and Israel in the 2020s, where aspiring authoritarians have sought to use constitutional amendments to dismantle constitutional checks on their authority.
In Pakistan, the 26th constitutional amendment encompassed court-packing, court-curbing, and court-managing. First, the rule of seniority that previously governed the appointment of Chief Justices was discarded. Instead, a ‘special parliamentary committee’ now selects a Chief Justice for three years from amongst the most senior judges in the Supreme Court. Formally, this would include members of the ruling and opposition parties, but given current restrictions on opposition parties in Pakistan’s parliament, ruling parties could choose their preferred Chief Justice. Second, the Judicial Commission that appointed and promoted judges, was altered to increase the members or allies of the ruling parties until they outnumbered judges in the commission. The amendment and subsequent legislation also significantly expanded the size of courts, including doubling the size of the Supreme Court. With the ruling coalition now in majority in the Judicial Commission, and the opening of new vacancies in courts, the government is currently ‘packing’ courts with loyalists. Third, the amendment curbed the ability of courts to initiate cases suo moto, i.e. without a petitioner. Over the past decade, suo moto cases have been the controversial vehicle through which the Supreme Court intervened in the administration and policymaking of previous governments. Fourth, the amendment empowered the government to effectively manage the judiciary. The 26th Amendment divided the courts, creating a Constitutional Bench within each court to hear constitutional cases. The government-dominated Judicial Commission nominates the pool of judges for constitutional benches and selects the presiding judge who assigns panels for individual constitutional cases from among that pool of judges. The Commission can also report judges for disciplinary proceedings based on vague grounds of ‘inefficiency’ and can alter the pool of judges for constitutional benches and the presiding judge when it wishes to, effectively enabling the government to manage panel assignment for cases pertaining to itself. Thus, the 26th amendment packed the judiciary with government loyalists, curbed its powers and brought it under government management.
This judicial overhaul needs to be analyzed as part of a process of regime realignment. By regime realignment, I mean a ruling authoritarian elite radically altering its supportive political structure and popular bases to expand and extend its hold on power. Based on news sources and conversations with senior lawyers and judges, I will show that this plan for judicial overhaul developed iteratively through a process of intra- and inter-institutional dialogue and conflict that took place during regime realignment, informed by the judiciary’s relationship to the regime before realignment, role after realignment and internal politics in response to realignment.
How did the Regime Pass this Amendment?
In Pakistan, the military has been the dominant partner in a militarized hybrid order since 2018. In 2022, the military opted for a strategic realignment, transitioning from a ruling partnership with a populist party, the PTI (Pakistan Tehreek-e-Insaaf), to a ruling partnership with a coalition of parties that had been in opposition over the previous four years, the PDM (Pakistan Democratic Movement). The realignment revised the institutional configuration and repertoire through which the regime asserted power. The military shifted from an aligned executive and judiciary relying on strong-form judicial review actively clearing obstacles facing regime consolidation, to an aligned executive and legislature relying on weak-form judicial review deferentially “rubber stamping” regime consolidation.
Regime realignment was not a popular choice. Facing popular political opposition, the regime agreed to elections in February 2024. In the lead-up to the elections, the caretaker government appointed to supervise the elections intensified state repression targeting the PTI and its popular leader, Imran Khan. The Election Commission disqualified many PTI members from running and banned PTI candidates from running under their party symbol and name, the symbol through which voters recognized party candidates on the ballot. When, in spite of pre-poll rigging, the PTI performed much better than expected, the Commission, working with other state institutions, oversaw a blatant effort to manipulate election results and prevent the PTI from securing a parliamentary majority. The PDM could then form a coalition government, while the PTI’s winning candidates were barred from joining parliament as members of the PTI.
In the run-up to and aftermath of the election, the Supreme Court acted as a ‘rubber stamp’ for the regime, ignoring petitions challenging military court trials of political prisoners, upholding the Election Commission’s decision to take away the PTI’s symbol, and delaying hearing petitions challenging election results. The regime was fortunate to have a Chief justice who was aligned with and amenable to the regime’s priorities. However, the Chief Justice was set to retire by September 2024, and the regime needed to ensure that actions taken to complete realignment would not face legal scrutiny and judicial review.
In this context, by May 2024, senior judges informed me that backdoor discussions on constitutional amendments had been underway. Initially, changes being proposed by affiliates of the military to the judges were more modest, i) altering mechanisms for judicial appointments and promotions, and ii) increasing the retirement age of Supreme Court judges, but fixing the Chief Justice’s term to two or three years. Thus, Chief Justice Isa would extend his tenure maintaining the status quo of aligned institutional leadership, but judges expected to succeed him may still do so after his extended term.
However, constitutional amendments required a parliamentary supermajority, and the governing coalition needed to manufacture the supermajority. In Pakistan’s national assembly, parties get allotted a proportion of seats reserved for women and religious minorities, based on the proportion of elected seats they won. The PTI’s elected representatives, having been disallowed from joining parliament as members of the PTI, ostensibly joined a minor party, the Sunni Ittehad Council (SIC), so the SIC could get the PTI’s share of reserved seats. However, the Commission refused to allocate these seats to the SIC, and instead allocated reserved seats to the ruling coalition, helping it close in on the supermajority.
The SIC challenged the Commission’s decision in the Supreme Court. Under the incumbent Chief Justice, the regime was likely confident they would get a favourable judgment. However, unexpectedly, an eight-member majority, that excluded Chief Justice Isa, but included Justice Shah, who was, by seniority, next in line to be Chief Justice, ruled that: i) the Commission acted in a partisan manner when it banned PTI candidates from running as members of the PTI, ii) elected members of the PTI should sit in parliament as members of the PTI, effectively restoring the PTI’s place as the largest party in parliament and iii) the PTI should get a share of the reserved seats in line with their ‘true’ parliamentary position. When the Commission avoided complying with the judgment and filed petitions to review the judgment, Justice Isa was unable to get senior judges to agree to hear the review petitions urgently.
The judgment demonstrated to the regime that i) there was discontentment within the Supreme Court regarding its complicity in regime realignment, and ii) Justice Isa did not have enough command over his Court to sustain judicial cooperation. One senior judge explained to me, “Justice Isa may have felt his allies were now blocking his extension,” and another senior lawyer said: “How was an extension for the Chief Justice useful to them (the military), if he could not control his judges?”
Thus, discussions around the amendment shifted from simply extending tenures and tweaking appointment rules to radically reorganizing the judiciary to give the government greater control over the senior membership of the judiciary and ensure that judges who did not fall in line were powerless to pushback.
In late September 2024, the government attempted to pass the new amendment package, without parliamentary deliberation. The leaked draft, along with altering processes for selecting the chief justice and appointing and promoting judges, also created a new Federal Constitutional Court that stripped the Supreme Court of its constitutional jurisdiction rendering it irrelevant. The retirement age of judges of the Constitutional Court was extended to 68, and in the first instance, the judges of the new Court would be appointed by the President and his handpicked Chief Justice.
The regime simultaneously worked on both acquiring numbers it needed to pass the amendment, and using the prospect of passing the amendment to get judges to fall in line with its interests.
First, the ruling coalition used incentives and pressure to win votes of parties outside the ruling coalition. Coalition party leaders met with leaders of parties outside the coalition, offering incentives and concessions in exchange for their votes. PTI legislators and members of small parties also faced intimidation tactics, including arrests and threats of abduction targeting them and their families, to compel them to defect from their parties and vote with the government, if needed.
Second, judges disclosed that the military kept close tabs on discussions among senior judges and conveyed messages to judges through civilian affiliates that changes in the composition of the court would be limited if judges fell in line. As one judge said: “The conditions were clear: don’t cross our red lines and we can work well together: don’t open election cases, allow military trials (of the PTI) to continue, and reverse the reserved seats judgment.” However, the military was unable to get the guarantees it sought from several senior judges like Justice Shah, who resisted these terms.
When the government faced resistance from small parties and some senior judges, it conceded on the retirement age and on the constitutional court, but instead created constitutional benches. Constitutional benches, on the face of it, seemed less drastic than creating a new court, but were actually more damaging. The government-dominated Commission could now directly influence panel assignment for cases, meaning the government could also manage the courts.
Only once the government got the necessary support from party leaders, did it actually share the text of the amendment in parliament. Within a couple of days, the amendment bill was presented, passed and signed into law, without deliberation. The government-dominated parliamentary committee selected the most junior judge eligible for the post as Chief Justice, overlooking two more senior judges due to their role in the Reserved Seats judgement. The government also used its Commission majority to select a pool of judges for the constitutional benches, deemed more pliable by the government, and appointed as Presiding Judge for the constitutional benches, a judge who had steadfastly stood with the regime.
Thus, a captured parliament, elected through a process that enjoyed no popular legitimacy, passed a major constitutional amendment that enjoyed no procedural legitimacy, designed to ensure that regime realignment did not face any legal challenges from a “rubber-stamp” judiciary.
Why Could Judges Not Stop this Amendment?
Holgado writes that judges can resist democratic erosion and abusive constitutionalism by forging alliances internally with fellow judges, horizontally with parties in parliament, or diagonally with civil society organizations. Unfortunately, in Pakistan, none of these alliances existed.
Absence of Horizontal Alliances
Leaders from the PDM expressed their grievances with the strong-form judicial review that had been directed against their government and party members before regime realignment. This included the de-seating of elected prime ministers, aggressive pursuit of corruption charges against party members and judicial interventions that constricted the governing space for their elected governments, all of which helped clear the obstacles in the way of the rise and consolidation of the PTI and military’s populist hybrid regime in 2018. This history, combined with the military’s increasingly direct management of legislative activity, meant the judiciary found little support in a parliament where the military and the PDM dominated and the PTI was excluded.
Absence of Internal Alliances
The period of strong-form abusive judicial review also created fissures within the judiciary. Before 2022, judges who were not comfortable with the judiciary’s interventionism and partisanship had either been sidelined from panels hearing politically important cases, or, in the case of then-Justice Isa, faced attempts at being purged from the judiciary.
When the regime realigned in 2022, the judicial leadership did not realign so quickly. But, as the then-Chief Justice only selected judges who aligned with him to hear politically salient cases, and issued judgments that frustrated efforts of the new regime to consolidate power, the judges who were sidelined, including Justice Isa and Justice Shah, supported the new legislature’s efforts to constrain the Chief Justice’s discretion to act in a selective and partisan manner, and limit the impact of his judgments. Hence, political grievances with the judiciary’s recent role and judicial polarization encouraged non-compliance with the judiciary and set the stage for legislative limits on the Chief Justice’s discretion and the Court’s jurisdiction.
When Justice Isa became Chief Justice, he upheld legislation that placed some constraints on his own discretion in panel selection and showed restraint in asserting suo moto jurisdiction, thus correcting for some of the judicial excesses from the populist era. However, deference to parliamentary supremacy concealed the fact that 2024’s manufactured electoral result did not reflect the popular will, and parliament was being directly managed by the military. Perhaps Justice Isa thought he should collaborate with the new regime to correct the injustices of the populist authoritarian era. Indeed, I learned from his colleagues that he said he believed he was “on the right side of history,” and was preventing worse outcomes. Nonetheless, under his leadership, the Court’s deference to, and legitimization of, the repressive actions of the new regime, helped entrench the new authoritarian alignment.
The judiciary’s complicity with, and deference to the regime, led several judges, who had supported Justice Isa when he was targeted before, such as Justice Shah, to align with judges who previously endorsed the judiciary’s interventionist jurisprudence. Whether judges were motivated by objections to persecution of the PTI, concerns about judicial deference in a time of authoritarian repression, or grievances with the Chief Justice’s own imperious approach to his colleagues, a new grouping of judges formed and made its presence felt in the reserved seats judgment.
However, judges who had tacked their career prospects to the new regime’s success openly called for defiance of the judicial majority’s orders in the reserved seats case, and ruled to enable the government to count the legislative votes of party defectors from opposing parties, if needed. Thus, judicial polarisation prevented the development of alliances strong enough to prevent the amendment’s passage.
Further, once the amendment passed, the system of presiding judges, changeable constitutional benches and new judicial vacancies created new opportunities for judges who were previously not in contention for promotions and leadership positions to lobby their way into these new positions. Thus, as one judge put it, a “good-boy” syndrome spread across many judges, accepting executive management and proving their deference to the government in exchange for career advancement. Hence, the internal alliance needed to push back against the amendment has not materialized, and resistance from a faction of judges deepened the regime’s resolve to divide and subordinate the judiciary.
Absence of Diagonal Alliances:
The Pakistani bar has a history of active mobilization and has previously come together with judges to resist executive overreach. Junior judges and bar associations jointly resisted a constitutional amendment increasing judges’ retirement age and giving senior judges a three-year extension in 2003. However, ruling parties now used government patronage to manage bar politics and control the more agitational factions within the bar. The amendment also created vacancies on the courts and reduced the eligibility age for filling the vacancies. Many lawyers with judicial aspirations focused on lobbying their way into filling vacancies, rather than organizing against the amendment. Thus, through co-optation and material incentives, the government hindered the development of diagonal alliances.
Conclusion
Not all judicial overhauls are bad, and not all court-packing is illegitimate. Pakistan’s judicial system has a history of anti-political jurisprudence that undermined the development of democratic institutions, necessitating some legitimate intervention. However, the procedure through which this amendment was passed and the judicial system it produced can claim no such legitimacy, as a captured parliament effectively ended the judiciary’s ability to act as a check on authoritarian consolidation.
However, once appointments are made, leadership posts are filled, and available patronage is disbursed, judges will grow restive under constraints on authority and autonomy, and lawyers will start organizing again. Some judges who are keen to overturn the amendment are looking to exploit ambiguities in the amendment and forge alliances with judges and lawyers who are feeling the weight of executive management. It is an uphill struggle. Resisting judges are short on allies, and as we have seen, resistance can backfire, but pushing back against the amendment is crucial if any modicum of constitutionalism is to be re-established in Pakistan.