Given the latest developments in our country’s judicial landscape, it can be safely inferred that the judiciary is once again under attack. Efforts are underway to curtail its independence, with the executive seemingly aspiring for a pliant and submissive judiciary. The 26th Amendment, passed in haste without consulting key stakeholders, has been projected by the government as an attempt to enhance judicial efficiency. However, in reality, it appears to be a strategic move to manipulate the judiciary and undermine its independence. Additionally, considering the government’s previous attempts to amend the Constitution to subdue the courts, the latest decision to transfer judges from other federating units to the Islamabad High Court is viewed with suspicion. This move is being equated with the practice of court packing.
Legal experts opine that under the guise of improving judicial performance, court packing is taking place. The executive aims to install judges of its choice in key courts, thereby securing rulings aligned with its interests. Political scientists define such a practice as court packing.
The origins of court packing can be traced back to the United States in 1937, with the most famous example being President Franklin D. Roosevelt’s attempt to expand the U.S. Supreme Court to obtain favorable rulings for his New Deal policies. This controversial plan ultimately failed but left a lasting debate on judicial independence.
Court packing is particularly dangerous for democratic governance as it disrupts the balance of power, granting the executive unchecked authority. It paves the way for authoritarianism and weakens the mechanisms of checks and balances, effectively transforming democracy into autocracy.
Legal experts opine that under the guise of improving judicial performance, court packing is taking place.
The practice of expanding or restructuring the judiciary to favor a ruling party’s agenda has become a significant concern in Pakistan’s political and legal landscape. While the Constitution allows judicial appointments and amendments to the judiciary’s structure, any attempt to manipulate the system for political gain undermines the separation of powers, judicial independence, and democratic governance.
The very spirit of the Constitution of Pakistan envisions a governance system based on the separation of powers. However, political interference-whether through judicial appointments, the formation of special benches, or amendments to judicial powers-has long been a tool for governments to influence court decisions in their favor. The 26th Amendment is a glaring example of how the legislature, by altering the policy and procedure for appointing judges in apex courts, has encroached upon the judiciary’s exclusive domain. This blatant executive overreach has granted the government greater influence in judicial appointments, resulting in the placement of judges aligned with its ideology.
Governments also resort to court packing through selective bench formation. The strategic formation of special benches to hear high-profile political cases is a form of judicial engineering frequently employed to suppress opposition. The covert influence of the ruling elite in such maneuvers cannot be ignored. In the Panama Papers case, the Supreme Court formed a five-member special bench to hear the disqualification case against then-Prime Minister Nawaz Sharif. Critics argue that political factors influenced the judges, ultimately leading to Sharif’s disqualification under Article 62(1)(f). This decision had long-term consequences, setting a precedent for using judicial rulings to remove political leaders from office. Similarly, in cases involving Imran Khan, accusations of judicial bias and partiality persist. The government’s role in initiating cases against Khan has raised serious concerns about the judiciary being used as a tool for political manoeuvring.
Increasing the number of judges in the Supreme Court also raises concerns about court packing. In 1997, the number of Supreme Court judges was fixed at 17. However, in 2024, this number was increased to 25, in addition to ad hoc judges. This expansion allowed the ruling government to appoint more loyalist judges, effectively tilting the balance in its favour. Furthermore, the use of presidential references represents another form of court packing, wherein the government exerts influence over the judiciary to secure favourable outcomes. A notable example was the 2019 reference against Justice Qazi Faez Isa, widely perceived as an attempt to weaken an independent judge.
It is imperative to reflect on and respond to this ongoing practice of court packing. If left unchecked, it could erode judicial credibility and lead to institutional conflict between the executive, legislature, and judiciary. A politically compromised judiciary may struggle to enforce its rulings, ultimately weakening the rule of law. History provides ample evidence of the dangers of court packing. In Turkey, Russia, and Hungary, similar practices have been used to silence dissent and erode democratic institutions. Pakistan risks following a similar trajectory if these practices are not curtailed. The 26th Amendment and the transfer of judges to the Islamabad High Court represent significant legal manoeuvres that must be subjected to constitutional scrutiny. While judicial efficiency is a legitimate concern, any measure that compromises judicial independence and institutional autonomy must be approached with extreme caution.
Pakistan’s constitutional framework mandates a judiciary free from executive interference. As observed in State v. Dosso (PLD 1958 SC 533), judicial legitimacy stems from constitutional fidelity, not executive compliance.
Judicial independence is the cornerstone of constitutional democracy. As Lord Acton famously stated, “Power tends to corrupt, and absolute power corrupts absolutely.” Unchecked judicial alterations, if left unchallenged, risk transforming the judiciary into an extension of executive authority rather than a guardian of constitutional principles. It is imperative that Pakistan upholds the rule of law over political expediency.
Finally, the judiciary must invoke the “Basic Structure Doctrine” to counter judicial engineering and limit unwarranted executive interference in judicial matters. This doctrine holds that certain fundamental constitutional principles cannot be altered or abolished, even through constitutional amendments. To conclude, the judiciary’s role is to uphold the rule of law, not to serve political interests. As concerns about judicial independence mount in Pakistan, resisting court packing is essential for preserving democratic governance. The legal community, civil society, and the public must remain vigilant against any attempts to manipulate the judiciary, ensuring that justice remains fair, impartial, and independent.
The writer is an advocate and a columnist based in Quetta.