Typically, specialised constitutional courts are regarded as effective institutional protectors of democracy and human rights because of their increased efficiency, specialised knowledge and positive impact on constitutional culture. However, this blog argues that Pakistan’s new Federal Constitutional Court is a wolf in sheep’s clothing: by strengthening executive control over the judiciary, the reform undermines democracy rather than enhancing it.

In November 2025, the Pakistani government passed the 27^th Constitutional Amendment. Among other changes to Pakistan’s distribution of power, such as expanding presidential immunities and centralising military authority under the Chief of the Army Staff, the amendment created a new Federal Constitutional Court (FCC).

The FCC assumes the Supreme Court’s prior jurisdiction over constitutional interpretation, federal-provincial disputes, and the enforcement of fundamental rights. The consequence is a bifurcation of supreme judicial authority in Pakistan: the Supreme Court retains appellate jurisdiction over non-constitutional matters, while the FCC is the authoritative voice on constitutional adjudication. These latter matters are typically the most crucial in protecting democratic rights and norms against the state’s authoritarian intervention.

Justification of Specialised Constitutional Courts

Removing constitutional adjudication from the Supreme Court is argued to reduce that court’s significant case backlog, which stood at 56,169 cases in October 2025.

In addition to increased judicial efficiency, the Bill’s objects and reasons refer to improved consistency of constitutional adjudication by employing judges with “demonstrated expertise in constitutional law.” Constitutional decision-making is a specialised discipline involving complex, value-laden, systemic reasoning. Arguably, establishing a court with these specialised skills, rather than the more varied legal reasoning required in mixed courts, improves constitutional decisions.

Specialised constitutional courts also have a normatively important function in establishing constitutional respect. The argument is that a specialised court, in protecting its institutional interests, reinforces the salience of the constitution for both political actors and civil society. This constitutionalism-promoting function is especially important in countries where politicians have historically disregarded the constitution. This is true of Pakistan, where once-military and now increasingly authoritarian leadership has consistently ignored judicial pushback.

Institutional Capture

However, specialised constitutional courts are not necessary to protect democracy and human rights. Ordinary courts in successful constitutional democracies such as Australia, India and Canada exercise both constitutional jurisdiction and supreme appellate authority. Conversely, countries such as Turkey and Hungary maintain specialised constitutional courts that are criticised as ineffectual due to executive control. Judicial independence, rather than judicial specialisation, is the primary determinant of a court’s effectiveness in protecting democratic rights and norms.

Pakistan’s judicial history underscores this. Following the military leadership’s firm control over judicial elections and tenure from the 1950s, the judiciary took control of its own appointment process in the tenuous civilian rule of the 1990s. Consequently, under the military leadership of General Musharraf (1999–2008), the Supreme Court became progressively more assertive, challenging the regime’s violations of civil rights and the unconstitutional accrual of executive authority.

This independence has recently eroded. In 2024, the 26^th Constitutional Amendment reintroduced political control over judicial appointments by reconstituting the Judicial Commission such that only five of its thirteen members are now from the judiciary. Nonetheless, the Supreme Court in Sunni Ittehad Council v Election Commission of Pakistan (2024) challenged the consolidation of reserved seats among ruling parties. This indicates the court’s ongoing independence from, and sporadic resistance to, the regime.

The 27^th Amendment can plausibly be read as a response to such resistance. The first FCC judges are to be appointed by the President on the Prime Minister’s advice. No objective criteria or accountability procedure exists for this appointment. While subsequent appointments will be made by the Judicial Commission, as mentioned, this body is increasingly subject to executive capture. In reconstituting the bench of the country’s highest constitutional court, the regime reduces the likelihood of judicial intervention against its authoritarian interests.

Ultimately, the effectiveness of judicial institutions in protecting constitutional, democratic, and human rights norms depends primarily on their institutional independence. Eroding this independence in Pakistan appears to be the real reason behind the FCC’s creation. As these reforms form part of a broader global trend of judicial capture and associated democratic backsliding, the warning is clear: we should not allow institutional labels to mask democratic erosion.