Pakistan judges refuse to recognize new constitutional court, demand case be returned to SC

Five serving judges of the Islamabad High Court asked the Federal Constitutional Court (FCC) of Pakistan on Saturday to immediately return their pending intra-court appeal to the Supreme Court, arguing that the 27th Constitutional Amendment and the transfer of their case to the new court are without lawful authority.

The appeal had been fixed for hearing at the FCC on November 24.

The judges, Justice Mohsin Akhtar Kayani, Justice Tariq Mehmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan and Justice Saman Rafat, originally filed their petition in February this year.

Their appeal stems from a wider dispute over judicial transfers and seniority at the Islamabad High Court.

In January 2025, the five judges approached the Supreme Court, challenging the government’s decision to transfer three judges from other high courts to the IHC. They argued that the transfers breached constitutional requirements of consent, consultation and judicial independence under Article 200.

On June 19, 2025, a five-member constitutional bench of the Supreme Court ruled three to two against them, upholding the transfers and sending the seniority issue to the president for a decision based on service records. The judges then filed an intra-court appeal on June 28, 2025, seeking to set aside the verdict and halt its implementation.

The appeal was still pending in the Supreme Court when the 27th Amendment came into force last month. The amendment automatically shifted the case to the newly created Federal Constitutional Court under Article 175F(2).

In their latest application, the judges argued that the 27th Amendment violates fundamental features of the Constitution, particularly judicial independence and the separation of powers. They say Parliament cannot establish a new court and then grant that same court exclusive authority to decide whether the amendment that created it is valid.

The filing states that the legislature, executive and judiciary are all creations of the 1973 Constitution and form its three pillars, each with defined limits. The judges argue that the amending power cannot be used to abolish or weaken the judiciary, citing repeated rulings of the Supreme Court that have affirmed these boundaries.

They quote directly from their application: “A more grotesque assault on the rule of law is hard to imagine. By this simple device, the entire constitutional edifice built upon the principle of separation of powers and independence of judiciary collapses.”

The petition maintains that only the original Supreme Court can determine whether the amendment has lawfully removed its powers.

The judges added that the FCC, which came into existence because of the 27th Amendment, cannot decide on the legality of the very amendment that created it. They also argued that their appeal was filed under section 5 of the Supreme Court Practice and Procedure Act 2023 and does not fall within the transfer clause of Article 175F(2), meaning its move to the new court has no legal foundation.

Four of the same judges, excluding Justice Tariq Mehmood Jahangiri, have already filed a separate constitutional petition in the Supreme Court directly challenging the 27th Amendment. That petition claims the amendment gives the executive excessive influence over judicial appointments, alters the terms of serving judges and was enacted with mala fide intent.

The government has maintained that the amendment aims to create specialized constitutional courts and reduce case backlogs.