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Vinay Kaura, “’Hybrid Militarised Legalism’ and Judicial Hollowing Out in Pakistan,” ORF Occasional Paper No. 536, Observer Research Foundation, April 2026.
This paper proposes a new theoretical construct of ‘hybrid militarised legalism’ to describe how the military establishment in Pakistan has hollowed out the judiciary in the country. Hybrid militarised legalism stands at the intersection of comparative constitutionalism, civil-military relations, and international relations (IR) theories of sovereignty. Existing literature has depicted the declining role of the judiciary in authoritarian and hybrid regimes, but has yet to give new insights into the theoretical aspects of military institutions working as constitutional engineers rather than informal veto players or extra-legal coercive actors. While advancing a synthetic framework under ‘hybrid militarised legalism’, which explains how judicial subversion can occur through legal means, this paper situates the Pakistani case within the bounds of established theories.
For long, judicial independence has been considered a fundamental component of a liberal legal order and constitutional democracy. Its decline is often associated with the concentration of power in the hands of the elected leader, the backsliding of democracy, or the imposition of martial law. Pakistan presents a more complex scenario where the judicial system has been reorganised and emaciated, as opposed to being formally abolished or openly liquidated. It is necessary to go beyond binary distinctions between democracy and authoritarianism, civilian versus military power, and legality and illegality to comprehend this phenomenon in Pakistan.
The novelty of ‘hybrid militarised legalism’ lies not in the formulation of an altogether new concept but in combining existing approaches to identify a particular form of constitutional transformation that is led by the military and not defined by either the traditional praetorian approach or civilian-led autocratic legalism.
The central conceptual framework of this analysis is based on ‘autocratic legalism’—a theory that originated in comparative constitutional law and explains how legal and constitutional means are used by elected/entrenched elites to consolidate their power.[1] Autocratic legalism encompasses various strategies for diminishing the effectiveness of traditional checks and balances while still maintaining the formal appearance of constitutional rule, using manipulative tactics such as changing the composition of the courts, restructuring the judicial process, altering procedures, and passing constitutional amendments. In contrast to traditional authoritarianism, which usually depends on an overt suspension of the rule of law or promulgating a decree of emergency, autocratic legalism maintains the semblance of legality as an important source of legitimacy.
The fundamental idea of this literature is that, in some circumstances, the law itself can actively consolidate authoritarianism. The legal system can be used selectively to get rid of institutional resistance, with judicial reforms being used as political insulation strategies, and constitutional amendments being employed as regime entrenchment mechanisms. The new institutional design does not dissolve courts but makes them jurisdictionally constrained. The alterations in the appointments’ procedure, creation of new courts, putting limitations on the power of judicial review, providing immunity to top military officials from judicial scrutiny, and the splitting of jurisdiction among competing legal entities collectively erode judicial independence.
This framework is useful in understanding Pakistan’s case, where constitutional amendments and legal reforms have been employed to rearrange judicial power. However, most of the literature on autocratic legalism, though powerful in terms of explanation, has a fundamental limitation: it mainly considers the civilian executive or the ruling political party as the primary agent of legal capture. While analysing the cases of, for example, Hungary, Venezuela, or Türkiye, the focus is mainly on the civilian leader who carries out constitutional changes to his advantage.[2] The role of militaries, particularly in countries that have been through the colonial period or where security concerns are privileged, such as Pakistan—and also Thailand, Egypt, and Myanmar—appears to be neglected in the literature.
Consequently, autocratic legalism has not been completely theorised to understand a stage where military institutions themselves take the lead in constitutional transformation, merely enforcing or harvesting benefits from civilian legal changes. This has had significant impact in countries such as Pakistan where the army has long been a key political player and where laws have been constantly altered to suit the needs of the security establishment.
The literature on hybrid regimes and competitive authoritarianism underlines the presence of liberal institutions side-by-side with non-democratic practices.[3] In these types of governments, parliaments and judicial systems are still functioning, elections are still held; however, they are rigorously controlled to guarantee the regime’s longevity. Formal pluralism still exists but, at the same time, is deprived of meaningful competition.
Judicial institutions are situated in a conflicting position in these systems. They can be given selective power to act as a means of punishing political rivals or justifying regime actions, while on the other hand, they are restricted in cases where they are seen to be challenging those in power. The literature helps to clarify the situation where autocratic rule becomes more powerful, and institutions still survive alongside each other. Hybrid regime theory has often placed Pakistan in the category of a ‘hybrid regime’, which is marked by regular elections, contestation among political parties, and the existence of a constitutional government—but one that can be overruled by the military.[4] Nevertheless, it typically visualises the military as an informal veto player hidden from plain sight, which only comes out during moments of crisis when its interests are threatened.
Hybrid militarised legalism departs from that assumption and argues that the role of Pakistan’s military has evolved from influencing the judiciary from behind the scenes to open and direct constitutional engineering. The judiciary is not only under pressure; it is also being restructured through such legal means that institutional hierarchies are being turned upside down.
The traditional theory of civil-military relations has been presented elaborately in Samuel Huntington’s framework of objective civilian control;[5] it sees military intervention as a turning point in constitutional governing. Likewise, the literature discussing praetorianism considers military involvement in politics to be always outside legal institutions and a cause of destabilisation. This approach implies a value-based distinction between military (hence, professional) and political powers, where dominance of the latter is regarded as the most desirable situation.[6] Such a framework, however, will have difficulty explaining situations where military forces do not completely remove the existing political structure but rather alter it.
Political and legal reforms are the main instruments through which the military establishment in Pakistan has, in recent years, exercised its influence over the judiciary—as opposed to declaring martial law or staging direct coups (as Gen. Ayub Khan did in 1958, as Gen. Yahya Khan in 1969, Gen. Zia-ul-Haq in 1977, and Gen. Pervez Musharraf in 1999). This is contrary to the traditional view in IR that in democratic political systems, militaries operate outside legal-rational authority. In many developing countries including Pakistan, the military is now becoming a constitutional player which, fully backed by the law, is redefining the power relationship between institutions. A change in conceptual understanding is needed to understand this. The case of Pakistan shows how armies can function within constitutional frameworks, changing them to gain the topmost position of the government while keeping the legal formalism intact. The civil-military relations theory has yet to sufficiently analyse this ruling mode.
IR theories of sovereignty and exception do have theoretical value in this case. In particular, Carl Schmitt’s argument, that sovereignty ultimately resides in the power to decide the exception, is important.[7] Schmitt is of the view that liberal constitutionalism is incapable of handling existential crises; the state of exception is the occasion when sovereignty is exhibited, which means law is put aside in favour of survival. Nevertheless, the paradoxical aspect of the Pakistani case, as viewed by theorists of authoritarian constitutionalism, is that it presents the legality of emergency measures as a permanent normal;[8] the logic of emergency is part of normal constitutional practice. Here, Schmitt’s analysis converges with the theory of securitisation, as developed by the Copenhagen School, which underlines that security is a social construct used to justify extraordinary steps.[9] Ole Wæver points out that, in securitisation theory, “the concept of security is Schmittian, because it defines security in terms of exception, emergency and a decision.”[10]
In Pakistan’s case, constitutional restructuring has been justified in terms of security narratives, which cover areas such as external instability, internal sabotage, terror activities, and the vulnerability to adversary forces. There is a perpetual securitisation of India as an eternal threat and internal insurgencies as a survival threat, which are used to justify extraordinary measures that go beyond the realm of democratic politics, as well as the use of authoritarian instruments such as the 26th and 27th Amendments. As judicial independence is portrayed as a barrier to achieving the goals of national security, courts surrendering their independence is regarded as a sovereign necessity. This narrative elevates temporary measures to the status of permanent legal practices by connecting the theory of sovereign exception to the discourse of securitisation. It can be reasonably argued that there is a conceptual bridge between the two, as the military does not suspend the law but reshapes it through security rationales to legitimise its constitutional role.
Differently from Schmitt’s model, under which law is prevented/suspended in cases of existential crises, Pakistan also reveals a continuous normalisation of the emergency logic, a situation in which the military alters constitutional structures instead of totally discarding them. Although this particular argument is framed within the Pakistani context, similar phenomena have been observed in other countries as well, where the military or security elites function within a constitutional framework—for example, Egypt, Thailand, and Myanmar—although in different historical and institutional circumstances in each case.
Concepts like ‘autocratic legalism’, ‘hybrid regimes’, ‘competitive authoritarianism’, ‘civil-military relations’, and ‘sovereignty theory’, all of which are empirically supported, have occasionally been employed to describe Pakistan’s political set up. None of them, however, can fully explain a military institution that systematically makes the judiciary powerless using fully constitutional means and preserving both domestic and international legitimacy. In this paper, the term ‘hybrid militarised legalism’ is being proposed as a theoretical construct that combines different aspects of this political reality. It is a mode of governance wherein hybrid regimes leverage militarised and juridical power; overt deference is shown to constitutional law, but militarised security elites manipulate it for their own purposes to control power and eliminate the judiciary’s independence. In contrast to Schmitt’s exception state, laws are not negated; the legal code is altered in a way as to place military players out of reach for the court’s scrutiny.
Security narratives and strategic imperatives are the main factors that make this process legitimate. In Pakistan, supporters of the recent changes in the Constitution maintain that these have contributed to the cohesion of the nation and the stability of the political system, and have improved relations between the military and the government. Critics, meanwhile, consider these changes as a gradual but certain destruction of the independence of the judiciary and the accountability of the government to the people. The resignation of some Supreme Court and High Court judges in protest gives weight to the conviction that the judicial independence in Pakistan is being practically wiped out rather than merely shifted around.
Though this paper focuses on Pakistan, the conceptual framework of hybrid militarised legalism has broader analytical utility. In several hybrid and security-centric states, militaries have not ruled exclusively through coups but have entrenched their influence through constitutional engineering. For example, in Thailand, the constitutional setup is structured in a way that thwarts the establishment of a stable democracy. Thailand’s “persistent constitutional manipulation”, and the entrenchment of the military within key state institutions, have contributed to a situation where the elected government is constrained by structural barriers imposed by unelected centres of power.[11] The 2017 Constitution, designed by the military junta, further institutionalised the oversight of conservative/military-aligned elements through an appointed Senate and entrenched security prerogatives.[12]
Egypt shows a similar pattern. Constitutional amendments in 2014 and 2019 have expanded the formal political role of the armed forces.[13] Egypt’s military and associated security and intelligence agencies have pervasive influence in the political, administrative, media, and economic domains. Through their loyal appointees and retired military personnel, they control Parliament and the government, dominate substantial parts of the media, influence the training of the civil service, and increasingly influence the country’s economic planning. Under the so-called “Second Republic” of Egyptian President Abdel Fattah el-Sisi, this pervasive military presence has not only been consolidated but has further solidified what political scientist Anouar Abdel-Malek had termed Egypt’s “military society”.[14] The relative independence of the Egyptian judiciary has also ended, with the law being used as “a tool not simply for authoritarianism in general but also for the ruling regime and military institution to assert control over society, to place themselves out of reach of legal/constitutional mechanisms and accountability either by issuing new laws and executive orders or altering existing ones.”[15]
In Myanmar, the 2008 constitutional provisions providing reserved parliamentary seats for the military institutionalised guardianship even before the 2021 coup. It demonstrated how constitutional design can embed military supremacy under electoral frameworks, highlighting the reality that even when the two elected governments—United Solidarity and Development Party through the 2010 general election and the National League for Democracy (NLD) through the 2015 general election—held power, the country was still under “quasi-military rule”.[16]
Thus, Pakistan’s trajectory is part of a broader pattern in which the military elite formalises authority without abolishing formal electoral politics.
From the IR perspective, hybrid militarised legalism goes beyond domestic constitutional design. Judicial independence is considered a primary factor in international legal compliance, democratic legitimacy, and the spreading of liberal norms. However, judicial independence and the rule of law, not equivalent concepts, can emerge only with the convergence of the government’s inability to challenge courts, along with public support for rights and institutional design, rather than simply through formal rules.[17] Substantial reduction of judicial authority leads to a gradual erosion of a state’s moral obligations to the rule of law. This decline in the already weak norms not only changes the domestic political order but also external perception and the state’s engagement with external actors. The mistrust of international partners results in reputational cost.[18] Besides, the undermining of judges’ independence also vitiates the process of internalising international human rights standards as the norm. Democratic values can hardly ever become part of the domestic legal system.[19]
In such regimes, laws and legal instruments are used to formalise and regulate the powers of the state and the military, to create and maintain inequalities between the civilian population and security forces. This shift has far-reaching consequences in the international arena: the issue of legal institutionalisation and restraint is turned upside-down and the promotion of rule-of-law-based governance becomes extremely difficult. The legal backing of military and security elites grants them the power to implement defence and external policies that are disconnected to a degree from civilian oversight or legislative limitation.[20] Consequently, foreign policy becomes increasingly influenced by narrow security considerations, with the strategic decision-making being done in the institutions that are concerned with threat perception, regime preservation, and coercive capacity rather than with normal diplomacy or multilateral cooperation. Pakistani scholar Muhammad Amir Rana has explained this dynamic by observing that “Pakistan’s hybrid political system behaves at times like a quasi-monarchy, with critical foreign policy decisions taken outside a broad parliamentary consensus.”[21]
Critics might claim that hybrid militarised legalism is largely a domestic concept and thus analytically peripheral to IR concerns with legitimacy, sovereignty, and normativity. This argument undervalues the essential role of the legal aspect in the international system. In constructivist and critical legal thinking, law is a social institution that influences state identity, grants the right to exercise sovereign power, and creates claims to legitimacy in both the domestic and international arenas. The influence of authoritarian regimes on international human rights law is adequately documented; it is well established that the international legal order is impacted by domestic politico-legal mechanisms.[22] Thus, hybrid militarised legalism cannot be seen just as a domestic governance tactic; it works at the international level by allowing governments to hide domestic coercion in legally logical terms, justify domestic oppression in the name of upholding sovereignty and security, and counter external objections through judicial legitimisation.
Judicial subversion in Pakistan may be explained with the help of this construct. Its analysis can contribute to the fields of IR and comparative politics in two ways. First, it can broaden the concept of autocratic legalism from civilian-led governments to encompass military-orchestrated political regimes, and thereby show how the military, instead of civilians, becomes key constitutional architects of the state in a legal sense. Second, it can expose how legality can be used as security technology in high-threat, post-colonial nations where perpetual instability is weaponised to justify normalisation of a state of emergency under constitutional cover. The concept therefore puts forward a theoretical language that can explain why the judicial erosion in Pakistan is not an isolated case, but rather is structurally rooted in the country’s evolving civil-military-legal order.
Since the creation of the state of Pakistan, the judicial system in the country has been influenced by military demands. In Maulvi Tamizuddin Khan v. Federation of Pakistan, the dissolution of Pakistan’s first Constituent Assembly in October 1954 was approved by Chief Justice Muhammed Munir of the Supreme Court.[23] This trend solidified under the various military regimes that followed, where the Supreme Court kept referring to the ‘doctrine of necessity’ to justify martial law. As analyst Aasiya Riaz has argued, “Instead of serving as bulwarks against the bulldozing of democracy, the courts served to legitimise these coups. The country has seen constitutions abrogated and martial law imposed in 1958, 1969, 1977, and 1999. After each imposition of martial law, the Supreme Court granted validation to the orders under what has been infamously termed the ‘doctrine of necessity,’ giving itself the dubious honour of playing handmaiden to military dictators.”[24] Rather than acting as a counter-majoritarian guardian, Pakistan’s Supreme Court has repeatedly normalised extra-constitutional interventions and subordination of civilian politicians, embedding military dominance within constitutional interpretation.
When General Ayub Khan abolished parliamentary democracy in October 1958, the judiciary backed his manipulated ‘basic democracy’ system. This initial partnership became stronger under General Mohammad Zia-ul-Haq in the 1980s when the courts further supported the Islamisation of law.[25] (No doubt, when the courts themselves were threatened as Zia-led Islamisation developed further towards parallel Sharia jurisdictions, the Supreme Court did respond with its ‘doctrine of harmonisation’, which required the provisions of the Constitution to be read as a whole. This was a stratagem that prevented the emergence of Islamic clauses as supra-constitutional and also allowed its co-existence with Sharia courts.[26])
The repeated validation of martial law regimes by the judiciary under the regimes of Generals Ayub Khan, Yahya Khan, Zia-ul-Haq, and Pervez Musharraf reflects praetorian intervention fusing with legal constitutionalism. Instead of the destruction of legality, there was an adaptation to power asymmetry, which is a precursor to hybrid militarised legalism. Judicial resort to the ‘doctrine of necessity’ should also be understood in the context of state fragility and elite fragmentation. Pakistan’s weak party institutionalisation, regional divisions, and chronic security concerns have ensured a permanent perception of legitimacy deficit. For many civilian regimes, which may or may not have had military support, the option of extra-constitutional accommodation was the lesser of two evils compared to the threat of institutional meltdown.
Pakistan’s Supreme Court did become a strong institution during the tenure of Iftikhar Chaudhry as the Chief Justice of Pakistan. His dismissal by President Musharraf in 2007 triggered a lawyers’ movement across the country, which ultimately resulted in the fall of the Musharraf regime. After Chaudhry’s reinstatement in 2009, the Supreme Court made substantial impact on the supremacy of the constitution and judicial activism, frequently invoking suo motu powers under Article 184(3).[27] However, a report by the International Commission of Jurists found inconsistencies in the use of these powers on serious human rights abuses such as enforced disappearances.[28]
While the judiciary did attempt ‘judicial activism’ after 2007 as a means to overcome its subordinate status, its assertiveness was paradoxical because while it actively involved itself in executive and legislative matters, it refrained from challenging the military’s dominant position in a substantive way. The Supreme Court’s claiming of a self-fashioned “salient features doctrine” to monitor constitutional amendments, even when there is no such explicit basic structure clause in Pakistan’s Constitution, was an indication that the court was trying to gain power from within rather than resisting the extra-constitutional forces.[29]
The Supreme Court was also complicit in the military-engineered process that led to the downfall of two prime ministers: Yousaf Raza Gillani was found guilty of contempt of court, and Nawaz Sharif was adjudged corrupt. The higher judiciary only asserted itself when the dictators were out of office. Such instances of pretence to judicial independence, which occurred after the conditions of intimidation were removed, only served to hide judicial supplication. The endorsement of dissolution of elected assemblies and the dubious role played in the removal of elected prime ministers by the judiciary only augmented the ability of the military to rule by legal sanction.
Recent efforts by Army Chief General Asim Munir to weaken the judicial system in the country still further shed crucial light on Pakistan’s historical trajectory. The military has progressively worked within the civil-fronted political framework to restructure judicial authority, rather than engaging in extra-constitutional interventions or outright judicial intimidation. The recent changes implemented by the hybrid regime, while appearing constitutional, will restrict judicial discretion and make security governance unassailable, protecting it from any substantive judicial enquiry with the pretence of constitutional continuity.
Unlike the periods when the judiciary was compliant due to declared martial law, the recent interventions work through law and therefore, subvert the power structure, the incentives, and the juridical limits of resistance. The final outcome is not an occasional subordination of the courts but a process of deinstitutionalisation of judicial independence, which is achieved in the name of apparently democratic procedures and law-making models. The transformation from coercive suppression to legal containment not only highlights the military’s constitutional dominance in Pakistan but also its sophisticated methods to consolidate its power through hybrid militarised legalism.
The 26th Constitutional Amendment was a momentous development in Pakistan’s judicial evolution towards hybrid militarised legalism. The changes it brought about in the constitutional structure of Pakistan undermined the independence of the judiciary and the principle of separation of powers. The hybrid government headed by Prime Minister Shehbaz Sharif claimed that it was an essential move to streamline the judicial process and strengthen institutional accountability. In fact, the amendment degraded the power of the judiciary by changing the modes of appointment and jurisdictional authority. It made the appointment of the Chief Justice of Pakistan’s Supreme Court a political choice.
One of the most relevant changes of the 26th Amendment was the granting of power to a Special Parliamentary Committee, comprised mainly of members of the ruling coalition, to select the Chief Justice of Pakistan from among the three highest-ranked judges of the Supreme Court. This replaced the earlier established seniority practice with a selection process influenced by political considerations. Alongside, the amendment also limited the Supreme Court’s suo-motu power, set up performance evaluation for judges, and laid the foundation for the making of constitutional benches. Initially, the government had proposed setting up a separate Federal Constitutional Court (FCC) that would work alongside the Supreme Court and exclusively deal with petitions regarding constitutional interpretation. However, it was eventually decided, in the final draft, to choose constitutional benches over a separate FCC.[30]
The 26th Amendment reduced judicial power to act independently, particularly in the areas of human rights and accountability of the executive. It was clear that the procedural reforms had given the government significant powers over judicial appointments enabling it to manipulate the composition of the bench in favour of the ruling regime. Senators representing the opposition party of jailed ex-Prime Minister Imran Khan, Pakistan Tehreek-e-Insaf (PTI), termed the changes a way to weaken the courts.[31] The Geneva-based International Commission of Jurists (ICJ) also expressed serious concerns about the absence of public consultations and the unusual haste in passing the legislation. Santiago Canton, ICJ’s Secretary General, lamented that the changes wrought by the amendment brought “an extraordinary level of political influence over the process of judicial appointments and the judiciary’s own administration. They erode the judiciary’s capacity to act independently and effectively function as a check against excesses by other branches of the State and protect human rights.”[32]
Most importantly, the 26th Amendment also increased the tenure of Pakistan’s army chief from three to five years, a typical example of militarised autocratic legalism. Overall, it enabled the military to consolidate its power not through direct coups, but through formally legal, parliamentary, and constitutional mechanisms. The Shehbaz Sharif government behaved as nothing less than a legal facilitator for military interests rather than an independent democratic institution. Pakistan’s Information Minister, Attaullah Tarar, for instance, told a news channel that “there is no harm if the tenure of any services chief is extended to five years like we have a five-year term for a government...It will help bring stability and continuity of policies within institutions.”[33] It was a claim that equated the power of an elected government with that of a military chief who is not elected, and also revealing a civilian government eager to legitimise military intervention for the sake of “stability” and institutional continuity. Within Parliament, there was hardly any debate; it acted as a rubber stamp on a decision that drastically altered the power dynamics between the military and the civilian government. It was a reflection of judicial and legislative hollowing out, where the formal institutions functioned, but were no longer able to meaningfully restrict the arbitrary power of the military.
The amendment enhanced Army Chief General Asim Munir’s authority directly, enabling him to retain his position until 2027. This personalisation of military power paved the way for transforming the army chief from a mere professional commander to a constitutional actor with the subsequent 27th Constitutional Amendment. Opposition claims of the legislation being ‘bulldozed’ through highlighted how the law was being used as a tool to promote hybrid militarised legalism: legality was maintained, but the legitimacy of the law was diminished.
Hardly two years ago, in October 2023, in Jawwad S. Khawaja v. Federation, Pakistan’s Supreme Court had ruled that military trial of civilians—in this case, some of those arrested for rioting following the arrest of ex-Prime Minister Imran Khan—was unconstitutional. But in May 2025, the Supreme Court’s newly formed constitutional bench overruled the highest court’s own earlier decision. The bench favoured the repeal of civilians’ trial rights in military courts by the Pakistan Army Act with a five-two majority (Justices Jamal Khan Mandokhail and Naeem Akhtar Afghan dissented).[34] This only consolidated a long process of constitutional fiddling by Pakistan to justify increasing the clout of military courts. Through the 21st Amendment in 2015 and later the 23rd Amendment in 2017, the Constitution and the Army Act had already been changed, albeit temporarily, by a compliant civilian government, working under the pressure of the military, to permit civilians to be tried by military courts. These extraordinary measures not only entrenched secrecy but also subverted the due process of law.[35] Even when the amendments expired in 2019, civilians continued to be put on trial under military laws. The October 2023 judgement of the Supreme Court had brought this distortion to an end; though only temporarily, as it turned out.
The May 2025 ruling marked the re-entrenchment of hybrid militarised legalism: the resort to legal institutions and arguments to push the ruling powers of the executive and the military under the cover of legality. Not only did the decision limit the protections that had been previously provided to civil trials but also increased the dependence of the civilian judicial system on the sweeping interpretations of security privileges.
On 13 November 2025, the 27th Constitutional Amendment came into effect. It accelerated the process of reorganising the judicial institutions of Pakistan. Passed with rare speed by the two houses of parliament and signed by President Asif Ali Zardari on the same day, the amendment marked the biggest constitutional alteration in Pakistan since 1973.[a],[36] The establishment of a Federal Constitutional Court (FCC)—the very step the 26th Amendment had hesitated to take—with the sole power to interpret the Constitution and settle disputes between provincial governments, effectively relegated a large part of the Supreme Court’s most fundamental powers to this newly constituted entity. This was the most drastic implication of the amendment; that apart, it provided for the president of Pakistan to appoint the judges of the FCC and the first Chief Justice after consultation with the prime minister, thereby giving the Executive a sizeable say over the judicial institution that would decide on constitutional issues.
Judges of the Supreme Court can now be transferred from one court to another even without their consent, and non-compliance can result in punishment. The usual protection to higher judicial appointees has thus been severely weakened. At the same time, Article 243 has been changed, abolishing the post of Chairman Joint Chiefs of Staff Committee, while the Army Chief is now also Chief of Defence Forces (CDF) with authority over all service branches; he has also been granted life-long immunity from prosecution for crimes. These protections will separate the military from civilian courts, a step that is likely to lead to undesirable fortification of military power, and limit democratic checks. Clearly, with the 27th Amendment, the Army chief’s position is now a constitutional post; Parliament has effectively “subordinated itself and the judiciary to the Army chief.”[37] The changes made to the Constitution reveal extreme imbalance and expose the operational aspect of ‘hybrid militarised legalism’.
An elected prime minister can now be thrown out by a simple majority in Pakistan’s Parliament, while the CDF—currently, Field Marshal Asim Munir—can only be removed by a two-thirds “supermajority”. This ironic inversion of democratic accountability shows that the law has been used as a tool to assert and entrench military control.[38] This particular imbalance—simple majority vs. supermajority—makes Pakistan’s current political regime a radical departure from the classical Westminster principles of responsible government. Under the mask of constitutional legitimacy, the amendment combines the high removal barrier for the CDF with the lifetime immunity from prosecution for not only Asim Munir—dubbed by US President Donald Trump as his “favourite Field Marshal”— but for all his successors, transforming this legal guarantee into an instrument of indefinite exercise of military power. The military’s ascension to a prominent and ultimately constitutional position has effectively destroyed the core of parliamentary democracy, which emphasises the supremacy of the civilian leadership. The new dispensation presents a totally lop-sided hybrid constitutional order where the classical methods of democracy are turned back and concepts of constitutionalism manipulated to secure the military’s formal dominance.
The radical constitutional transformations through the 27th Amendment have been justified by their defenders by claiming that setting up the FCC will alleviate the backlog of pending cases in the Supreme Court; they also underline the necessity of the coordinated security governance due to insurgencies and the strategic tensions in the region. Information Minister Attaullah Tarar, for instance, referring to military clashes with India in May 2025, argued that “these amendments are for governance, and the federal government’s coordination with the provinces, and to strengthen defence capability after winning a war.”[39]
The Pakistani judiciary has been struggling with the problem of pendency of cases for a long time. However, issues of institutional efficiency cannot be resolved at the expense of appointment procedures and jurisdictional boundaries. Given that the restructuring is accompanied by greater executive influence over judicial appointments and greater protection of the military from oversight, efficiency reforms may well serve as a conduit for power shifts. The critical issue is not about the need for reforms to reduce pendency, but whether they dilute judicial autonomy in the process.
Immediately after the enactment of the amendment, two senior Supreme Court judges, Justice Syed Mansoor Ali Shah and Justice Athar Minallah, resigned in protest, arguing that the step will subordinate the Supreme Court to the executive and destroy the court’s constitutional powers.[40] Another Lahore High Court judge also tendered his resignation. Some judges of Islamabad High Court openly expressed displeasure and sought to challenge the amendment,[b],[41] opposing court-packing in the FCC with ‘loyal’ judges. Some lawyers too, have called the move opaque and loyalty-based.[42] The All-Pakistan Lawyers Convention termed the FCC a “murder of judiciary.”[43]
International reactions have been similarly trenchant. United Nations High Commissioner for Human Rights Volker Turk has emphasised that the hasty constitutional reform endangers the independence and accountability of judicial bodies, especially concerning military action.[44] In January 2026, Amnesty International characterised the 27th Amendment, including the setting up of the FCC, as the culmination of a sustained assault on judicial independence, fair trial rights and the rule of law in Pakistan. It called for a comprehensive review to ensure conformity with Pakistan’s international human rights commitments.[45]
Analyst Sushant Sareen has rightly noted that “while the 26th Amendment signalled a demise of the judiciary, the 27th Amendment conducted its final rites,” and “formalised the ‘hybrid civil-military model’ of governance.”[46] These two constitutional amendments underscore steep decline in democratic accountability and judicial independence in Pakistan. They reveal a deep, and probably lasting, shift in the civil-military-legal order that has been carried out through constitutional means instead of an outright suspension of the constitution.
The most observable institutional expression of hybrid militarised legalism is the creation of the FCC. It illustrates how legality can be used as a tool to structurally circumscribe the judiciary.
The FCC has already begun to consolidate its institutional role within Pakistan’s reconfigured judicial hierarchy.[47] In December 2025, a two-member FCC bench, of Justices Aamer Farooq and Rozi Khan Barrech, ruled that constitutional interpretations and “decisions issued by the Federal Constitutional Court are binding on all courts in Pakistan, including the Supreme Court itself. Consequently, all courts in Pakistan are constitutionally mandated to adhere to the judgments of the Federal Constitutional Court.”[48] However, the FCC will not be bound by any judgment of the Supreme Court, previous or present. This is an unmistakable signal of the radical shift in the balance of judicial power, where the FCC is not only a court of review but the final authority on constitutional matters. The unrestrained independence of the FCC coupled with primacy of FCC-dictated jurisprudence is likely to function as a tool for unscrupulous consolidation of the coercive power of the military-dominated hybrid regime.
FCC benches have taken up other matters of public interest. For example, it scheduled suo-moto hearings on the high-profile criminal investigation of the Arshad Sharif murder case in Kenya,[c] making its presence felt in the adjudication of constitutional as well as consequential political issues. (However, it appears to have abdicated its oversight responsibility while disposing this case, as it overemphasised procedural norms, while ignoring systemic failures and deferring to executive diplomacy, leaving the Arshad Sharif family without meaningful redress.[49]) Some senior lawyers are reported to have urged the FCC to prioritise constitutional interpretation cases over public-interest matters, insisting it first define clear parameters for public-interest litigation.[50]
In any case, these developments underscore the centrality the FCC has acquired in Pakistan’s evolving constitutional order. By centralising constitutional review in a newly-created court whose structure and appointment processes are deeply entrenched in an executive-dominated system, Pakistan’s hybrid regime has reduced the likelihood of any negative judicial review of issues having a bearing on security policy, civil-military relations, or military accountability.
Although Pakistan’s Parliament still retains electoral legitimacy, hybrid militarised legalism is reshaping the very meaning and substance of legislative sovereignty and judicial autonomy. When constitutional amendments are adopted under military pressure or unequal bargaining power between civilian leaders and military elites, parliamentary approval risks becoming procedural validation. Political decisions appear superficially civilian; the parameters of choices are structured elsewhere.
The shield of supermajority provided to the CDF also marks a shift in the constitutional order of Pakistan. This will only lead to structural subordination, producing legislative hollowing out parallel to judicial hollowing out. It will also be extremely difficult to dismantle the FCC, which is quickly entrenching itself in Pakistan’s judicial landscape.
The hybrid regime is trying to institutionalise a hierarchy where the power of constitutional interpretation has been snatched away from the Supreme Court through restructuring jurisdictional parameters. Notably, this is unlike the classical concept of authoritarian court-packing. In hybrid militarised legalism, there is continuity in the Constitution with formal adherence to parliamentary procedures, while legal justification accompanies all structural changes. Despite the obvious fact that the military establishment is gaining the upper hand in the balance of power, legal formalities are being used to sustain a façade of constitutional rule, both domestically and internationally. Unlike in past instances, where the validation of military coups by the judiciary was grounded on the doctrine of necessity, the new paradigm incorporates military primacy as a component of constitutionalism itself.
Even if there is a successful political transition in the future where an electorally stronger civilian government is formed with an absolute majority, the constitutional structure instituted by the 27th Amendment is likely to curtail any chance of recalibration. Hybrid militarised legalism is not based on the suspension of the Constitution, but rather on its internal transformation. By constitutionalising military prerogatives, it has institutionalised what was previously viewed as unconstitutional interventions. Higher amendment thresholds and formal immunities to the CDF, and the creation of the FCC puts these arrangements above ordinary democratic overturn. The problem of mobilising a supermajority in a fractionalised political environment is also likely to further cement the constitutional dominance of the military establishment. Even a consolidated civilian bloc would face structural barriers that prioritise continuity over change. Civil-military dynamics will continue to be constitutionally asymmetrical; this will not change with a simple alteration in government. It would require a supermajoritarian constitutional transformation which can dismantle embedded military privileges.
In a political system characterised by hybrid militarised legalism, constitutional continuity can coexist with judicial hollowing out. The Pakistani military has captured judicial power under a civilian veneer. In appearance, Pakistan’s constitution remains intact, but it has been modified in such a way that the military is no longer subject to its scrutiny. Courts have not been abolished; they have simply been burdened with procedural rules, disciplined, and left with little power. Their power has been diminished through amendments, and the narrowing of jurisdiction—ways that seem legal or even reformist, but have the effect of slowly moving formal sovereignty outside parliament and towards the military establishment.
So-called security needs—national cohesion, political stability, or civil-military ‘harmony’—have been cited as the main reasons for the constitutional changes. However, it is leading to a situation where there is no constitutional accountability for the military whatsoever. Hybrid militarised legalism uncovers the method by which a judiciary can be incapacitated by law, how legal means are converted into military instruments, and how the hybrid regime backed by a military strongman can help him maintain domestic control and international legitimacy.
The consequences of hybrid militarised legalism are increasingly unavoidable. The constitutional authority given to the security elites detaches defence and foreign policy from civilian control, relocating diplomacy within security-focused institutions. The systematic erosion of Pakistan’s judicial independence and the total retreat of civilian oversight is the reason why South Asia’s already fragile strategic balance is further destabilised. If this governance model consolidates, the imbalance in Pakistan’s civil-military dynamics will not depend on episodic coercion but on entrenched constitutional hierarchy with the military on top. Without a supermajoritarian constitutional re-foundation, hybrid militarised legalism will continue to be the operative grammar of Pakistan’s political system.
Vinay Kaura, PhD, is Assistant Professor, Department of International Affairs and Security Studies, Sardar Patel University of Police, Security and Criminal Justice, Rajasthan; and Non-Resident Fellow, Institute of South Asian Studies, National University of Singapore.
All views expressed in this publication are solely those of the author, and do not represent the Observer Research Foundation, either in its entirety or its officials and personnel.
[a] Pakistan had acquired a new Constitution in 1973, dispensing with the presidential form of government and bringing back the parliamentary system of democracy that it had up to 1958.
[b] When four Islamabad High Court judges—Mohsin Akhtar Kayani, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan and Justice Saman Rifat Imtiaz—sought to challenge the 27th Amendment (their main contention was that the amendment violated Articles 9, 10A, and 25 of the Pakistani Constitution, which provide for due process, a fair trial and equal protection, by putting the judiciary under the control of the executive), the Supreme Court refused to entertain their petition, directing them to approach the FCC.
[c] Pakistani journalist Arshad Sharif was shot and killed by the local police in Kajiado, Kenya on 23 October 2022, in what Kenyan authorities called a case of mistaken identity. However, there were allegations that Sharif, who had to flee Pakistan following his criticism of the military, was killed by a conspiracy hatched by Pakistan’s military and Inter-Services Intelligence.
[1] Kim L. Scheppele, “Autocratic Legalism,” The University of Chicago Law Review 85, no. 2 (2018): 545-583; David Landau, “Abusive Constitutionalism,” UC Davis Law Review 47, no. 1 (2013): 189-260.
[2] Regitze Helene Rohlfing and Marlene Wind, “Death by a Thousand Cuts: Measuring Autocratic Legalism in the European Union’s Rule of Law Conundrum,” Democratization 30, no. 5 (2023): 551-68; Javier Corrales, “The Authoritarian Resurgence: Autocratic Legalism in Venezuela,” Journal of Democracy 27, no. 2 (2015): 37-51.
[3] Steven Levitsky & Lucan A. Way, Competitive Authoritarianism: Hybrid Regimes after the Cold War (Cambridge: Cambridge University Press, 2012); Andreas Schedler, “The Logic of Electoral Authoritarianism,” In Andreas Schedler (Ed.), Electoral Authoritarianism: The Dynamics of Unfree Competition (Lynne Rienner Publishers, 2006): 1-23.
[4] Katharine Adeney, “How to Understand Pakistan’s Hybrid Regime: The Importance of a Multidimensional Continuum,” Democratization 24, no. 1 (2017): 119–137; Sameen A. Mohsin Ali, “Democratic Backsliding and Public Administration in Pakistan’s Hybrid Regime: A Balance of Power Approach,” Policy Studies (2025), https://www.tandfonline.com/doi/full/10.1080/01442872.2025.2538846
[5] Samuel P. Huntington, The Soldier and the State: The Theory and Politics of Civil-Military Relations (Harvard University Press, 1957).
[6] Huntington, The Soldier and the State: The Theory and Politics of Civil-Military Relations; Morris Janowitz, The Professional Soldier: A Social and Political Portrait (New York: Free Press, 1960); Amos Perlmutter, “The Praetorian State and the Praetorian Army: Toward a Taxonomy of Civil-Military Relations in Developing Politics,” in N. W. Provizer (Ed.) Analyzing the Third World: Essays from Comparative Politics, (Cambridge, MA: Schenkman Publishing Company, 1978): 300-322.
[7] Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (Translated by George Schwab, Chicago: The University of Chicago Press, 2005).
[8] Giorgio Agamben, State of Exception (K. Attell, Trans.) (Chicago: The University of Chicago Press, 2005).
[9] Barry Buzan, Ole Wæver and Jaap de Wilde, Security: A New Framework for Analysis (Lynne Rienner Publishers, 1998).
[10] Ole Wæver, “Politics, Security, Theory,” Security Dialogue 42, nos. 4-5 (2011): 465-80.
[11] Narupat Rattanakit, “Thailand’s Revolving Senate: How Constant Changes Cement Military Power,” Center for Strategic & International Studies, December 9, 2024, https://www.csis.org/blogs/new-perspectives-asia/thailands-revolving-senate-how-constant-changes-cement-military-power
[12] Jacob Ricks, “Thailand’s Constitution Works as Intended to Frustrate Democratic Outcomes,” East Asia, Forum, August 5, 2023, https://eastasiaforum.org/2023/08/05/thailands-constitution-works-as-intended-to-frustrate-democratic-outcomes/
[13] Arwa Ibrahim, “How Egypt’s Referendum Deepened its Human Rights Crisis,” Aljazeera, April 28, 2019, https://www.aljazeera.com/news/2019/4/28/how-egypts-referendum-deepened-its-human-rights-crisis
[14] Cited in Yezid Sayigh, “The Changing Role of the Egyptian Military Under el-Sisi,” Italian Institute of International Political Studies, December 11, 2023, https://www.ispionline.it/en/publication/the-changing-role-of-the-egyptian-military-under-el-sisi-156254
[15] Mohamed Elgohari, “Deconstructing the Relation between Law and Authoritarianism: How Law Consolidated Authoritarianism in Post-2011 Egypt,” Arab Law Quarterly 36, no. 4-5 (2022): 452-475.
[16] Joe Kumbun, “Myanmar’s Fundamental Problem: The 2008 Constitution, Asia Times, February 18, 2021, https://asiatimes.com/2021/02/myanmars-fundamental-problem-the-2008-constitution/
[17] Gretchen Helmke and Frances Rosenbluth, “Regimes and the Rule of Law: Judicial Independence in Comparative Perspective,” The Annual Review of Political Science 12 (2009): 345-66.
[18] Tom Ginsburg, “How Authoritarians Use International Law,” Journal of Democracy 31, no. 4 (2020): 44-58.
[19] Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (New York: Cambridge University Press, 2009).
[20] Scheppele, “Autocratic legalism.”; Alper Kaliber, “Political Engineering Through Law: Hungary and Beyond,” IPC Working Paper, Istanbul Policy Center, September 2025, https://ipc.sabanciuniv.edu/Content/Images/CKeditorImages/20251016-12101693.pdf
[21] Muhammad Amir Rana, “Staying Relevant,” Dawn, January 25, 2026, https://www.dawn.com/news/1968962.
[22] Wayne Sandholtz, “Resurgent Authoritarianism, Rights, and Legal Change,” in Nico Krisch and Ezgi Yildiz (eds.), The Many Paths of Change in International Law, (Oxford University Press 2023): 179-200
[23] Muhammad Azeem, Law, State and Inequality in Pakistan: Explaining the Rise of the Judiciary (Singapore: Springer Nature, 2017): 56-57.
[24]Aasiya Riaz, “Judicial Populism and Its Impact on the Quality of Democracy in Pakistan” in Sook Jong Lee, Chin-en Wu and Kaustuv Kanti Bandyopadhyay, Populism in Asian Democracies: Features, Structures, and Impacts (Boston: Brill, 2022): 83.
[25] Muhammad Azeem, “A Strong Judiciary as a Crisis for Democracy: A ‘Law and Development’ Study from Pakistan,” Law and Development Review 14, no. 1 (2021): 109-10.
[26] Imran Ahmed, “‘Strategic Constitutions’: Constitutional Change and Politics in Pakistan,” South Asia: Journal of South Asian Studies 40, no. 3 (2017): 496.
[27] Meena Menon, “Iftikhar Chaudhry Leaves Behind a Legacy of Judicial Independence,” The Hindu, December 10, 2013, https://www.thehindu.com/news/international/south-asia/iftikhar-chaudhry-leaves-behind-a-legacy-of-judicial-independence/article5444853.ece
[28] International Commission of Jurists, “Authority Without Accountability: The Search for Justice in Pakistan,” 2013, https://www.icj.org/wp-content/uploads/2013/12/ICJ-EXEC-SUMMARY-PAKISTAN-FINAL.pdf
[29] Moeen Cheema and Marva Khan Cheema, “Fractured Foundations and Pakistan’s Kafkaesque Constitutional Amendment,” Verfassungsblog, October 21, 2024, https://verfassungsblog.de/pakistans-26-constitutional-amendment/, DOI: 10.59704/f72dd1e9c0e430bc.
[30] Imran Ahmed, Muhammad Saad Ul Haque, “Pakistan’s Constitutional Reform Package: Judicial Independence Under Threat?,” ISAS Briefs, Institute of South Asian Studies, National University of Singapore, October 23, 2025, https://www.isas.nus.edu.sg/papers/pakistans-constitutional-reform-package-judicial-independence-under-threat/
[31]Ayaz Gul, “Critics Concerned as Pakistan Parliament Moves to Pick New Chief Justice,” Voice of America, October 21, 2024, https://www.voanews.com/a/critics-voice-concerns-as-pakistan-parliament-takes-charge-of-picking-chief-justice/7830355.html
[32] International Commission of Jurists, “Pakistan: 26th Constitutional Amendment is a Blow to the Independence of the Judiciary,” October 21, 2024, https://www.icj.org/pakistan-26th-constitutional-amendment-is-a-blow-to-the-independence-of-the-judiciary/
[33]Asif Shahzad, “Pakistan Amends Law to Extend Powerful Army Chief's Service Tenure,” Reuters, November 4, 2024, https://www.reuters.com/world/asia-pacific/pakistan-parliament-approves-bill-extend-army-chiefs-service-tenure-2024-11-04/
[34] Press Trust of India, “Pak Supreme Court Rules in Favour of Military Trials of Civilians,” Deccan Herald, May 7, 2025, https://www.deccanherald.com/world/pak-supreme-court-rules-in-favour-of-military-trials-of-civilians-3529507
[35] Muhammad Asif Khan, “Legalising Authoritarianism through Pakistan’s Supreme Court,” Verfassungsblog, June 18, 2025, https://verfassungsblog.de/legalising-authoritarianism-through-pakistans-supreme-court/
[36] Haroon Janjua, “Has Pakistan Constitutionalized Military Supremacy?,” DW, November 13, 2025, https://www.dw.com/en/has-pakistan-constitutionalized-military-supremacy/a-74730065
[37] Sushant Sareen, “27th Amendment: Pakistan’s Parliament of Lemmings,” Observer Research Foundation, November 24, 2025, https://www.orfonline.org/expert-speak/27th-amendment-pakistan-s-parliament-of-lemmings
[38] Farzana Shaikh, “Pakistan’s 27th Constitutional Amendment Moves it One Step Closer to Authoritarian Rule,” Chatham House, December 2, 2025, https://www.chathamhouse.org/2025/12/pakistans-27th-constitutional-amendment-moves-it-one-step-closer-authoritarian-rule
[39] Saeed Shah and Asif Shahzad, “Pakistan’s Army Chief to Get Expanded Powers Under Proposed Reform,” Reuters, November 10, 2025, https://www.reuters.com/world/asia-pacific/pakistans-army-chief-get-expanded-powers-under-proposed-reform-2025-11-10/
[40] Shah, Mansoor Ali, “What Pakistan Supreme Court judge Mansoor Ali Shah Wrote in his Resignation Letter,” The Print, November 16, 2025, https://theprint.in/opinion/pakistan-supreme-court-judge-mansoor-ali-shah-resignation-letter/2785422/
[41] Malik Asad, “IHC Judges Seek SC Intervention on 27th Amendment,” Dawn, November 20, 2025, https://www.dawn.com/news/1956318/ihc-judges-seek-sc-intervention-on-27th-amendment
[42] Malik Asad and Nasir Iqbal, “Federal Constitutional Court Begins Work Amid Row Over Selection Criteria,” Dawn, November 15, 2025, https://www.dawn.com/news/1955219
[43] Hasnaat Malik, “Confusion Mars FCC’s Early Weeks,” Tribune Express, December 7, 2025, https://tribune.com.pk/story/2580932/confusion-mars-fccs-early-weeks
[44] UN OHCHR, “Pakistan: Türk Concerned by Constitutional Amendments and Immunity Provisions,” November 28, 2025, https://www.ohchr.org/en/press-releases/2025/11/pakistan-turk-concerned-constitutional-amendments-and-immunity-provisions
[45] Amnesty International, “Pakistan: Twenty-Seventh Constitutional Amendment Attacks Independence of Judiciary,” January 5, 2026, https://www.amnesty.org/en/documents/asa33/0591/2026/en/
[46] Sushant Sareen, “27th Amendment: Pakistan’s Parliament of Lemmings,” Observer Research Foundation, November 24, 2025.
[47] Zainab Malik, “Shifting the Scales: How Pakistan’s 27th Amendment Undermines Judicial Independence and Cements Executive Dominance,” Constitution Net, November 28, 2025, https://constitutionnet.org/news/voices/shifting-scales-how-pakistans-27th-amendment-undermines-judicial-independence
[48] The Dawn, “FCC Affirms All Other Courts, Including SC, are ‘Constitutionally Mandated’ to Adhere to Its Judgements,” December 21, 2025, https://www.dawn.com/news/1962446
[49] Rehan Piracha, “Family Demands Judicial Probe After FCC Disposes of Arshad Sharif Murder Case,” February 3, 2026, Voicepk, https://voicepk.net/2026/02/family-demands-judicial-probe-after-fcc-disposes-of-arshad-sharif-murder-case/
[50] Malik, “Confusion Mars FCC's Early Weeks.”
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Vinay Kaura PhD is Assistant Professor in the Department of International Affairs and Security Studies and Deputy Director of Centre for Peace &: Conflict Studies ...
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