Laws and rights in transition
AS Martin Luther King once said, “An unjust law is no law at all.”
In recent years, Pakistan has witnessed constitutional changes and amendments whose effects have rippled across the country, particularly in Balochistan.
These amendments have reshaped the structure of judicial authority and introduced laws that suppress fundamental rights under the guise of national security.
Every democratic state rests on the independence of its three pillars: legislature, executive and judiciary. But the 26th Constitutional Amendment disrupted this balance by directly interfering in the judiciary’s independence, effectively turning it into another arm of the executive.
This violates Article 175(3) of the Constitution, which states, “The judiciary shall be separated progressively from the executive”. Before the 26th Amendment, the Judicial Commission of Pakistan was composed mostly of judges: the chief justice of Pakistan (chairman), the four senior-most Supreme Court judges, a former Supreme Court judge nominated by the CJP, the federal law minister, the attorney general, and a senior advocate of the Supreme Court.
The 26th Amendment, however, amended Article 175(A), expanding the commission to include political members — two senators, two MNAs (one each from treasury and opposition), and a representative nominated by the Speaker. It also allowed the chief justice to be appointed from among the top three judges through a parliamentary committee.
These changes forced the judiciary to share its core function of appointing judges with political representatives, eroding its independence. The amendment also curtailed the Supreme Court’s suo motu powers, while the new constitutional bench has since issued controversial rulings — permitting military trials of civilians, upholding judicial transfers, and denying PTI reserved seats.
Laws meant to uphold justice are being reshaped into instruments of control.
Last month, the Supreme Court’s constitutional bench heard petitions challenging the 26th Amendment. The matter is now fixed for hearing on Nov 10, when the court will decide whether the same bench will continue or a full court should be constituted to examine its legality.
While the legality of the 26th Amendment remains under challenge, the government is preparing to table the 27th constitutional amendment bill in the Senate. The proposed amendment seeks to create a federal constitutional court, effectively curtailing the Supreme Court’s powers and striking at the spirit of the 18th Amendment. If passed, there may be no constitutional bench left by the time the case resumes.
Ironically, the very bench constituted under the 26th Amendment is now tasked with examining its own legality. The judges had a chance to exercise damage control by referring the matter to a full court of judges appointed before the 26th Amendment — an act that could have restored public confidence. That opportunity was not taken. And now, before any formal order has been issued, the 27th amendment looms, threatening to fundamentally alter the judicial structure by introducing a parallel court system.
The erosion of judicial independence and the violation of fundamental rights did not stop there. This year, the Balochistan Assembly passed the Anti-Terrorism (Amendment) Act 2025, granting sweeping powers to law enforcement, including detention of individuals for up to 90 days without informing families or granting a fair trial. This directly violates Article 10, which requires a detainee to be produced before a court within 24 hours.
The amendment raises a constitutional issue: the Anti-Terrorism Act, 1997 is a federal law — can a province amend it? Under Article 143, federal law prevails in case of conflict. The federal Act mandates that detainees be presented within 24 hours, while the provincial amendment allows 90-day detention, clearly violating constitutional protections. Similar amendments have now been introduced at the federal level, further expanding the state’s power to curtail individual liberty.
These measures also undermine the principle of the presumption of innocence. Across the world, individuals are presumed innocent until proven guilty. But under these amendments, the people of Balochistan are treated as guilty by default, forced to prove innocence during detention.
Both the 26th and proposed 27th amendments and the Anti-Terrorism (Amendment) Act in Balochistan are unjust and unconstitutional. Both seek to institutionalise executive control by reducing the Supreme Court’s role as the final arbiter of constitutional interpretation. The Balochistan Bar Council, human rights groups, and international organisations such as Amnesty International and the UN have warned that these measures violate covenants like the ICCPR and undermine fundamental freedoms.
Recently, another anti-terrorism amendment act in Balochistan has been debated, though its text is yet to be published. From reported provisions, it appears even more draconian: a Grade-21 officer will have the power to choose judges for trials from names sent by the chief justice of the Balochistan High Court — giving final authority over judicial assignments to the executive.
It also introduces secrecy: judges, prosecutors, and lawyers will operate under codes rather than in open court. How can trials be considered fair when justice is hidden from public view? Such measures undermine the principle that ‘justice must not only be done but must also be seen to be done’.
Together, the 26th and proposed 27th amendments and the provincial anti-terrorism amendments reveal a disturbing trend — weakening judicial authority and eroding constitutional protections. Laws meant to uphold justice are being reshaped into instruments of control, suppressing dissent and undermining democracy.
So where does this leave us? Are these laws meant to strengthen democracy, or are they shaping a system that bends under its own weight? Can a society call itself free when its courts answer to politics and its citizens can be silenced without trial?
Perhaps the deeper question is not about law at all, but about power: who truly holds it — the people, the Parliament, or the silence written into law?
The writer is a lawyer based in Quetta.
Published in Dawn, November 7th, 2025
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