Continuity, Transformation, and the Post-2025 Constitutional Order
Barrister Mian Zafar Iqbal Kalanauri
Advocate Supreme Court of Pakistan
Fellow Chartered Institute of Arbitrators
Abstract
The Constitution of the Islamic Republic of Pakistan, 1973, embodies a distinctive dual architecture in Part II: Fundamental Rights (Articles 8–28), which are judicially enforceable, and Principles of Policy (Articles 29–40), which articulate the moral and socio-economic vision of the State but are traditionally non-justiciable. This article examines the philosophical foundations, doctrinal evolution, and contemporary significance of this constitutional design. It further analyzes how the Eighteenth Amendment (2010), Twenty-Sixth Amendment (2024), and Twenty-Seventh Amendment (2025) have reconfigured the enforcement of rights, culminating in the creation of a Federal Constitutional Court (FCC) and the curtailment of the Supreme Court’s original jurisdiction. Drawing upon Pakistani jurisprudence and comparative constitutional theory from India and South Africa, the study argues that Pakistan’s constitutional order has entered a new phase in which the classical balance between enforceable liberties and aspirational state policy is being reshaped by institutional redesign, altered appointment mechanisms, and the relocation of constitutional guardianship. The paper proposes that the vitality of Pakistan’s constitutionalism now depends on whether the FCC can preserve the spirit of Part II as a living charter of dignity, justice, and democratic accountability.
Keywords: Fundamental Rights; Principles of Policy; Constitution of Pakistan; Federal Constitutional Court; Judicial Independence; Grundnorm; Separation of Powers; Comparative Constitutional Law.
I. Introduction: Part II as Pakistan’s Moral Constitution
Part II of the Constitution of the Islamic Republic of Pakistan, 1973, constitutes the ethical and normative heart of Pakistan’s constitutional order. It divides the relationship between the individual and the State into two complementary domains: (i) Fundamental Rights (Articles 8–28), which are immediately enforceable by courts; and (ii) Principles of Policy (Articles 29–40), which guide governance and articulate the socio-moral vision of the State.
This bifurcation reflects a synthesis of liberal constitutionalism and Islamic-welfarist thought. It mirrors post-colonial constitutional experiments across South Asia most notably India’s model of Fundamental Rights and Directive Principles of State Policy-yet Pakistan’s version is normatively distinct. It is infused with Islamic values (Articles 31 and 38(f)) and a strong conception of distributive justice and social solidarity.
From its inception, the 1973 Constitution sought to break with authoritarian legality and colonial legacies. In Asma Jilani v Government of Punjab, the Supreme Court repudiated the doctrine of revolutionary legality and affirmed that constitutional supremacy, not power, is the source of legal validity. Part II operationalizes this supremacy by transforming the Constitution from a structural charter into a living covenant between the State and the citizen.
For decades, Pakistani jurisprudence treated Fundamental Rights as “hard law” and Principles of Policy as “soft law.” Yet judicial creativity—particularly after Benazir Bhutto v Federation of Pakistan—blurred this divide by interpreting rights purposively in light of policy principles. Environmental jurisprudence, socio-economic rights, and public interest litigation steadily infused aspirational norms with enforceable content. Article 9 was expanded to include quality of life; Article 25A transformed education from policy aspiration into constitutional entitlement; and Article 19A constitutionalized informational autonomy in a digital age.
The post-2025 amendments compel a reassessment of this constitutional equilibrium. By relocating constitutional guardianship to a newly constituted Federal Constitutional Court and recalibrating judicial appointments, Pakistan has entered a new phase in which the meaning of rights is inseparable from the design of institutions that interpret them. The central question is no longer merely what rights exist, but who ultimately speaks for the Constitution.
II. Fundamental Rights: Enforceable Liberties and Judicial Protection
Articles 8–28 constitute a justiciable Bill of Rights. Article 8 renders void any law inconsistent with Fundamental Rights. Articles 9 and 9A protect life, liberty, and the right to a clean, healthy, and sustainable environment. Articles 10 and 10A ensure safeguards against arbitrary arrest and guarantee fair trial and due process. Article 11 abolishes slavery, forced labour, and child labour. Articles 15–19A secure freedoms of movement, assembly, association, trade, speech, and access to information. Articles 20–22 protect religious freedom and institutional autonomy. Articles 23–24 safeguard property. Articles 25 and 25A enshrine equality and the right to education. Articles 26–28 prohibit discrimination and preserve cultural identity.
This architecture marks a decisive transition from colonial subjecthood to constitutional citizenship. The Supreme Court has repeatedly held that Fundamental Rights must be interpreted “expansively and liberally” to advance human dignity. In Shehla Zia v WAPDA, the Court elevated environmental protection into the core of Article 9, holding that “life” includes quality of life and ecological integrity. Post-Eighteenth Amendment jurisprudence has construed Article 25A as imposing positive obligations upon the State to ensure access to education.
These developments signify a shift from negative liberties to positive entitlements. Fundamental Rights are no longer merely shields against State intrusion; they are instruments for social transformation. Pakistani courts have adopted a purposive public-law method akin to India’s post-Maneka Gandhi jurisprudence, reading Articles 9, 14, and 25 together to construct a composite right to dignity. Procedural due process under Article 10A now governs not only criminal trials but administrative action, employment discipline, and regulatory governance.
This method resonates with South Africa’s doctrine of transformative constitutionalism, where rights are vehicles for restructuring social relations. Yet Pakistan’s experience remains institutionally fragile. The efficacy of rights depends not only on interpretive generosity but on the independence and accessibility of constitutional forums. The promise of Part II, therefore, is inseparable from the architecture of constitutional guardianship.
III. Principles of Policy: Aspirational Constitutionalism
Articles 29–40 of the Constitution articulate the moral horizon of the Pakistani State. They are not framed as immediately enforceable rights; rather, they express the ethical commitments and socio-economic aspirations that are to guide legislation, governance, and public administration. These provisions include:
- Promotion of an Islamic way of life (Article 31);
- Establishment of local government with special representation for women, peasants, and workers (Article 32);
- Full participation of women in national life (Article 34);
- Protection of minorities (Article 36);
- Promotion of social justice and eradication of social evils, including illiteracy and expensive justice (Article 37);
- Promotion of social and economic well-being, including access to basic necessities and elimination of exploitation and usury (Article 38);
- Strengthening bonds with the Muslim world and promotion of international peace (Article 40).
Formally, Article 29(2) renders these principles non-justiciable and subject to “availability of resources.” This textual caveat reflects a classical distinction between liberty rights and welfare aspirations. Yet Pakistani constitutional jurisprudence has never treated these provisions as ornamental.
In Government of Balochistan v Azizullah Memon, the Supreme Court famously held that the Principles of Policy “constitute the conscience of the Constitution” and that no organ of the State may act in disregard of them. The Court emphasized that, although non-enforceable in isolation, these principles are binding in spirit and supply the teleology of the constitutional order.
Over time, courts have employed the Principles of Policy as interpretive beacons. Articles 9 and 14 have been read in light of Articles 37 and 38 to construct a dignitarian conception of life. In cases concerning bonded labour, prison conditions, environmental degradation, and access to justice, courts have harmonized enforceable rights with aspirational policy.
This method parallels India’s jurisprudential evolution, where Directive Principles-originally non-justiciable-have been gradually infused into the content of Fundamental Rights. In Minerva Mills v Union of India, the Indian Supreme Court declared that “Fundamental Rights and Directive Principles together constitute the core of the Constitution.” South Africa goes further by explicitly constitutionalizing socio-economic rights and subjecting them to judicial enforcement under a standard of “reasonableness.”
Pakistan’s model occupies a middle space. It retains a formal distinction between rights and policy, yet allows judicial creativity to bridge that divide. The genius of Part II lies in this dynamic tension. Rights prevent tyranny; policy prevents indifference. Rights secure freedom; policy secures meaning.
The danger arises when this dialogic relationship is severed-when Fundamental Rights are reduced to procedural claims and Principles of Policy are consigned to political rhetoric. A Constitution that aspires to dignity cannot survive on liberties alone. It must also sustain a moral economy of care, inclusion, and social justice.
The vitality of the Principles of Policy thus depends upon two conditions:
- Judicial willingness to integrate them into rights interpretation; and
- Institutional independence of the forum that performs this integration.
Both conditions are now tested by the post-2025 constitutional order.
IV. Evolution through Constitutional Amendments
The architecture of Part II has not remained static. It has been reshaped by successive constitutional amendments, each reflecting shifting political and normative priorities. Four amendments are particularly consequential: the Eighteenth (2010), Twenty-Fifth (2018), Twenty-Sixth (2024), and Twenty-Seventh (2025).
A. The Eighteenth Amendment (2010): Constitutional Reinvigoration
The Eighteenth Amendment is widely regarded as Pakistan’s constitutional restoration. It reversed the distortions introduced by military regimes, strengthened parliamentary democracy, enhanced provincial autonomy, and re-energized Part II by constitutionalizing socio-economic entitlements.
Two insertions are especially significant:
- Article 19A – Right to Information;
- Article 25A – Right to Education.
These provisions transformed policy aspirations into enforceable rights. Access to information became a constitutional entitlement in a democratic and digital age. Education ceased to be merely a policy goal under Article 37 and became a justiciable obligation of the State.
Judicially, the Amendment entrenched constitutionalism. In Sindh High Court Bar Association v Federation of Pakistan, the Supreme Court declared that judicial independence and separation of powers are “salient features” of the Constitution, immune even from parliamentary erosion. This doctrine mirrors India’s “basic structure” theory and situates Pakistan within a global tradition of higher constitutionalism.
The Eighteenth Amendment thus strengthened both the substance of rights and the structure of constitutional guardianship.
B. The Twenty-Fifth Amendment (2018): Territorial Inclusion
The Twenty-Fifth Amendment merged the former Federally Administered Tribal Areas (FATA) with Khyber Pakhtunkhwa, extending the full spectrum of Fundamental Rights and judicial remedies to historically marginalized regions.
This was a constitutional act of inclusion. It affirmed that rights are not privileges of geography. By extending Articles 8–28 and the jurisdiction of superior courts to these areas, the Amendment operationalized the egalitarian promise of Part II.
C. The Twenty-Sixth Amendment (2024): Procedural Reorientation
The Twenty-Sixth Amendment introduced “Constitutional Benches” within the Supreme Court and High Courts for adjudication of constitutional matters. It recalibrated the process for appointment of the Chief Justice and curtailed the Court’s suo motu powers.
While framed as procedural reform, its normative effect was structural. It signaled a shift from organic constitutional evolution to managed adjudication. Constitutional review became specialized, segmented, and procedurally constrained.
The Amendment thus marked a transition from judicial self-regulation to legislatively mediated constitutionalism.
D. The Twenty-Seventh Amendment (2025): Structural Transformation
The Twenty-Seventh Amendment effected a paradigmatic shift by establishing a Federal Constitutional Court with exclusive jurisdiction over constitutional interpretation and Fundamental Rights. It:
- Repositioned the Supreme Court as primarily an appellate forum;
- Transferred original constitutional jurisdiction to the FCC;
- Reconstituted the Judicial Commission with political predominance;
- Enabled inter-provincial judicial transfers without consent;
- Introduced controversial immunities for certain constitutional offices.
This transformation does not merely adjust procedure; it relocates constitutional sovereignty. The forum that speaks last for Part II is no longer the historically evolved Supreme Court but a newly constituted body whose origin and composition are politically mediated.
The cumulative effect of these amendments is paradoxical. The Eighteenth and Twenty-Fifth Amendments expanded rights and inclusion. The Twenty-Sixth and Twenty-Seventh recalibrate the institutions that give those rights life.
Pakistan thus stands at a constitutional crossroads: a rich charter of dignity and justice, paired with an architecture that risks converting constitutional supremacy into administrative design.
V. The Post-2025 Constitutional Architecture: Rights, Courts, and Power
The establishment of the Federal Constitutional Court (FCC) through the Twenty-Seventh Amendment marks the most profound reconfiguration of Pakistan’s constitutional architecture since 1973. For the first time, the apex judiciary has been structurally bifurcated. The Supreme Court—historically conceived as the guardian of constitutional supremacy—is now repositioned primarily as an appellate tribunal in civil and criminal matters. The FCC, by contrast, is vested with exclusive jurisdiction over constitutional interpretation and the enforcement of Fundamental Rights.
This transformation alters not merely institutional design but constitutional philosophy. Rights are no longer mediated through a court whose legitimacy is historically and symbolically rooted in Pakistan’s struggle against authoritarianism. Instead, constitutional meaning is now filtered through a forum whose origin, composition, and jurisdictional scope are legislatively curated and politically initiated.
Three doctrinal consequences follow:
- Fragmentation of apex authority;
- Politicization of constitutional guardianship;
- Contraction of judicial initiative.
Together, these changes re-shape the lived experience of Part II.
A. Fragmentation of Apex Authority
Constitutionalism thrives on coherence. From Maulvi Tamizuddin Khan through Asma Jilani, from Zafar Ali Shah to Sindh High Court Bar Association, the Supreme Court evolved as a continuous constitutional voice. Its authority derived not merely from textual jurisdiction but from historical continuity. It became the institutional memory of Pakistan’s constitutional conscience.
The FCC introduces a rupture. Two apex courts now coexist:
- One speaks for ordinary legality;
- The other speaks for constitutional supremacy.
This fragmentation risks:
- Jurisprudential divergence;
- Doctrinal inconsistency in rights interpretation;
- Erosion of public perception of a single constitutional conscience.
In District Bar Association Rawalpindi v Federation, the Supreme Court warned that constitutional design must preserve “institutional harmony and functional coherence.” A Constitution that speaks in multiple, competing apex voices risks becoming episodic rather than organic.
India consciously resisted such fragmentation. Despite creating specialized tribunals, constitutional interpretation remains monopolized by the Supreme Court. In L. Chandra Kumar v Union of India, statutory attempts to bypass constitutional jurisdiction were invalidated on the ground that judicial review is part of the basic structure. Pakistan’s new model departs from this tradition by constitutionalizing bifurcation itself.
The danger is not merely technical. Constitutional authority is partly symbolic. Where citizens no longer know which court embodies the Constitution, constitutionalism loses its civic clarity.
B. Politicization of Constitutional Guardianship
Judicial independence is not a matter of personal virtue; it is a structural condition. In Al-Jehad Trust v Federation of Pakistan, the Supreme Court held that independence requires insulation from executive and legislative control over appointment, tenure, and transfer. Independence is architectural before it is ethical.
The post-2025 architecture recalibrates each of these dimensions:
- The Judicial Commission is reconstituted with political predominance;
- Initial appointments to the FCC are executive-driven;
- Transfers of High Court judges may occur without consent;
- Refusal may amount to de facto retirement.
These changes transform the judiciary from a co-equal branch into a managed institution.
Comparative constitutionalism illuminates the stakes. In India, the NJAC Amendment—designed to introduce political actors into judicial appointments—was struck down. The Supreme Court held that even “balanced” political participation undermines independence because constitutional adjudication must remain structurally autonomous from those whose actions it reviews.
South Africa is even more explicit. In the Certification case, the Constitutional Court refused to validate a draft constitution that weakened judicial independence. Independence was treated as a substantive prerequisite of constitutional democracy, not a negotiable design choice.
Pakistan’s reforms invert this logic. They constitutionalize political predominance over judicial architecture. The effect is subtle but profound: courts remain formally independent yet structurally permeable. The danger is not overt control but anticipatory compliance—an institutional psychology shaped by design.
C. Contraction of Judicial Initiative
Public interest litigation and suo motu jurisdiction became Pakistan’s distinctive mechanism for democratizing access to justice. They enabled courts to address bonded labour, missing persons, environmental degradation, prison conditions, and electoral malpractice. Constitutional remedies were not confined to those with means; they became instruments of civic protection.
Curtailment of suo motu power transforms rights from public entitlements into procedural privileges. Only those with resources, representation, and procedural literacy may now activate constitutional protection.
In Benazir Bhutto v Federation of Pakistan, the Supreme Court emphasized that constitutional remedies must remain accessible to the powerless. Rights are not luxuries of litigation; they are guarantees of citizenship.
South Africa illustrates an alternative path. Section 38 of its Constitution expands standing to “anyone acting in the public interest.” Pakistan’s trajectory moves in the opposite direction-toward procedural enclosure.
The effect is not merely doctrinal. It is sociological. Constitutionalism becomes less a civic shield and more a professional service.
D. Structural Impact on Fundamental Rights
Rights do not exist in abstraction. They live through institutions.
A right to dignity (Article 14), life (Article 9), and fair trial (Article 10A) is only as strong as the forum that enforces it. When that forum is:
- Politically curated;
- Procedurally constrained; and
- Jurisdictionally isolated,
rights become administratively tolerable rather than normatively supreme.
The post-2025 order thus transforms Fundamental Rights from constitutional imperatives into regulated claims. The danger is not authoritarianism by decree; it is constitutionalism by management.
A Constitution that aspires to dignity must not merely enumerate rights; it must embed them in institutions structurally capable of resisting convenience, pressure, and power.
VI. Comparative Constitutionalism: India and South Africa
Comparative constitutional experience reveals a central truth: rights endure not merely because they are textually guaranteed, but because they are institutionally protected by courts that are structurally independent, normatively authoritative, and publicly legitimate. India and South Africa—two post-colonial constitutional democracies—offer instructive contrasts and convergences for Pakistan’s evolving constitutional order.
Both jurisdictions emerged from histories of authoritarianism and exclusion. Both adopted constitutions that sought not merely to organize power, but to transform society. Yet in each case, the durability of rights has depended less on aspirational text than on the architecture of constitutional guardianship.
A. India: The Basic Structure Doctrine and Judicial Primacy
India’s constitutional experience is defined by the basic structure doctrine, articulated in Kesavananda Bharati v State of Kerala. There, a deeply divided Supreme Court held that while Parliament possesses wide amending power, it may not alter the “basic structure” of the Constitution. Judicial independence, separation of powers, federalism, and Fundamental Rights were declared inviolable.
This doctrine transformed the Indian Constitution from a malleable statute into a higher normative order. It also positioned the Supreme Court as the ultimate guardian of constitutional identity. The Court did not merely interpret the Constitution; it protected its selfhood.
The doctrine matured in Indira Nehru Gandhi v Raj Narain, where even a constitutional amendment immunizing the Prime Minister’s election from judicial review was struck down. The Court insisted that democratic legitimacy does not authorize constitutional self-destruction. Power, even when electorally conferred, must remain constitutionally bounded.
The most illuminating parallel for Pakistan arises from the NJAC Case (Supreme Court Advocates-on-Record Association v Union of India). India’s Parliament enacted a constitutional amendment replacing the judicial collegium with a National Judicial Appointments Commission that included political actors. The Supreme Court invalidated the amendment, holding that:
- Judicial independence is part of the Constitution’s basic structure;
- Even “balanced” political participation in appointments undermines independence;
- Guardianship of rights cannot be structurally subordinated to transient majorities.
The Court reasoned that a Constitution is not merely a democratic instrument—it is a counter-majoritarian charter. Courts must therefore remain insulated from political control, precisely because they review the acts of those who govern.
Pakistan’s post-2025 reforms diverge sharply from this trajectory. Rather than constitutionalizing judicial primacy, they recalibrate it toward political predominance. Where India entrenched restraint on Parliament, Pakistan constitutionalizes parliamentary redesign of judicial architecture.
The lesson is doctrinal, not ideological: rights survive where courts possess structural autonomy from those whom they review.
B. South Africa: Transformative Constitutionalism and Institutional Independence
South Africa’s post-apartheid Constitution is animated by the ideal of “transformative constitutionalism”—a commitment to restructure society through law. In S v Makwanyane, the Constitutional Court abolished the death penalty, declaring that the Constitution is “a bridge from a culture of authority to a culture of justification.” The Court understood rights not as static entitlements but as instruments for moral and social reconstruction.
South Africa’s Constitution explicitly guarantees socio-economic rights—housing, healthcare, education, and social security. Yet these rights are meaningful only because the Court possesses both authority and legitimacy to enforce them.
In Grootboom v Oostenberg Municipality, the Court held that the State must adopt “reasonable” measures to realize socio-economic rights. In Glenister v President of South Africa, legislation weakening anti-corruption bodies was invalidated because constitutional democracy requires institutions with “sufficient independence to discharge constitutional obligations.”
Most critically, in the Certification of the Constitution case, the Court refused to certify a draft constitution that failed to secure judicial independence. It held that independence is not a procedural luxury but a substantive prerequisite of constitutional democracy. Courts must be institutionally secure against political control, not merely rhetorically autonomous.
South Africa thus demonstrates three propositions:
- Rights are engines of social transformation;
- Courts must be institutionally insulated to perform this role;
- Constitutional legitimacy flows from principled constraint, not political convenience.
Pakistan’s Part II aspires to a similar moral horizon. Articles 9, 14, 25, 37, and 38 collectively envision a dignified, egalitarian society. Yet unlike South Africa, Pakistan has not entrenched socio-economic rights textually. Their realization depends on judicial creativity and independence.
By recalibrating judicial architecture toward political management, Pakistan risks undermining the very mechanism through which its aspirational Constitution can become transformative.
C. Convergence and Divergence: Lessons for Pakistan
India and South Africa converge on one foundational insight: constitutionalism is not secured by elections alone; it is sustained by institutions that restrain power.
Both systems:
- Treat judicial independence as constitutionally entrenched;
- View courts as guardians of constitutional identity;
- Resist political capture of judicial architecture.
Pakistan’s constitutional history already contains the seeds of this philosophy. In Sindh High Court Bar Association v Federation, the Supreme Court declared that judicial independence is a “salient feature” beyond the reach of ordinary amendment. This resonates with Kesavananda and Certification.
Yet the post-2025 order departs from this comparative trajectory. It does not merely reform institutions; it repositions constitutional guardianship within political gravity. Where India and South Africa constitutionalized distance between power and its reviewer, Pakistan constitutionally compresses that distance.
The comparative lesson is not that Pakistan must replicate India or South Africa. It is that a Constitution that aspires to dignity and justice must ensure that its interpreter is structurally free from those whose power it restrains.
Where guardianship is politically contingent, rights become administratively negotiable.
VII. Constitutional Critique: Grundnorm and the Trichotomy of Powers
A. The Constitution as Grundnorm: From Supremacy to Contingency
Hans Kelsen’s theory of Grundnorm posits that every legal system derives its validity from a foundational norm-the Constitution. This norm is not merely textual; it is a collective acceptance that this document, and no other, is the ultimate source of legal authority. In Pakistan, the repudiation of revolutionary legality in Asma Jilani v Government of Punjab restored the Constitution as the sole fountain of legality. The Court declared that power cannot create law; only the Constitution can.
The 1973 Constitution was conceived as Pakistan’s normative rupture from authoritarianism. Articles 5 and 8 entrenched constitutional supremacy, while Articles 184(3) and 199 empowered courts to give that supremacy living force. The Constitution thus became not merely an organizing charter but a moral order.
The post-2025 architecture places this Grundnorm under strain in three ways:
- Contingent Guardianship.
When the ultimate interpreter of the Constitution is politically curated, the Constitution’s supremacy becomes administratively mediated. A Grundnorm loses normative force if its guardian is perceived as contingent upon transient political alignments. - Fragmented Voice.
Two apex courts speaking in parallel dilute the Constitution’s singular authority. The Constitution ceases to “speak” through one historically legitimized voice and instead becomes jurisdictionally partitioned. - Procedural Enclosure.
Curtailment of suo motu and public standing transforms constitutional supremacy into a procedural privilege rather than a public guarantee.
In Sindh High Court Bar Association v Federation, the Supreme Court held that judicial independence is a “salient feature” immune from erosion even by constitutional amendment. This doctrine mirrors India’s basic structure theory. Its normative foundation is Kelsenian: a Constitution that permits its own subordination ceases to be supreme.
A Grundnorm is not self-executing. It lives through institutions that embody its authority. Where those institutions are architecturally dependent, the Constitution becomes managerial rather than normative.
B. Trichotomy of Powers: From Functional Equilibrium to Vertical Management
Montesquieu’s trichotomy-legislative, executive, judicial-is embedded in Pakistan’s constitutional fabric (Articles 50–212). The doctrine is not ornamental. It ensures that no single organ monopolizes authority.
In Al-Jehad Trust v Federation of Pakistan, the Supreme Court held that separation of powers and judicial independence are intrinsic to constitutionalism. In District Bar Association Rawalpindi v Federation, it warned that no branch may tilt the constitutional balance in its own favour.
Post-2025 reforms recalibrate this balance:
- Appointments are politically dominated;
- Transfers may occur without consent;
- Judicial initiative is curtailed;
- Constitutional review is relocated to a forum born of executive design.
This transforms trichotomy from functional equilibrium into vertical management. The judiciary remains formally independent but structurally permeable.
Comparative jurisprudence underscores the danger. In Indira Nehru Gandhi v Raj Narain, even constitutional immunity for a Prime Minister was invalidated for violating separation of powers. In South Africa’s Certification case, judicial independence was treated as a precondition of constitutional democracy.
Pakistan risks converting separation of powers into administrative convenience, where courts function within boundaries drawn by those whom they review.
VIII. Restoration Blueprint: Re-Anchoring Constitutional Supremacy
Restoration does not imply regression. It entails recalibrating institutions so that the Constitution resumes its role as a living moral order.
1. Re-Centralize Constitutional Guardianship
- Either restore original Fundamental Rights jurisdiction to a single apex forum; or
- Insulate the FCC through:
- Judicial majority in appointments;
- Fixed, non-renewable terms;
- Removal only through judicial process.
Constitutional meaning must flow from a forum structurally independent of political design.
2. Entrench Salient Features
Codify—through interpretation or amendment—that:
- Judicial independence;
- Separation of powers;
- Access to justice; and
- Constitutional review
are salient features beyond structural dilution. This aligns Pakistan with Kesavananda and Sindh High Court Bar.
3. Revive Substantive Trichotomy
- Transfers only with consent or judicial concurrence;
- Disciplinary control within the judiciary;
- No branch to dominate personnel architecture of another.
Separation of powers must be functional, not ceremonial.
4. Integrate Rights with Policy
Mandate interpretive synthesis of:
- Articles 9, 14, and 25 with Articles 37 and 38;
- Environmental dignity (Article 9A) with welfare obligations.
Courts should adopt a transformative method akin to South Africa—rights as engines of social reconstruction.
5. Dialogic Constitutionalism
Replace command with dialogue:
- Courts set constitutional baselines;
- Parliament responds within limits.
This preserves democratic space while protecting constitutional identity-the Kesavananda–NJAC model.
IX. Conclusion: Restoring the Constitution as a Living Charter
Part II is not an annex. It is Pakistan’s constitutional soul. It embodies a promise: that power will be civilized, that dignity will be protected, and that justice will not be postponed.
The post-2025 order has redrawn the institutional map of rights enforcement. Whether this transformation strengthens or dilutes constitutionalism depends upon whether constitutional guardianship remains normatively supreme.
A Constitution does not merely organize the State.
It disciplines power.
It dignifies the citizen.
It restrains the moment in the name of posterity.
Restoration does not mean regression. It means:
- Re-entrenching supremacy;
- Re-balancing power;
- Re-humanizing rights; and
- Re-civilizing authority.
That is the vocation of Pakistan’s Grundnorm.
Conclusion
The Constitution of the Islamic Republic of Pakistan, 1973, was conceived as the moral architecture of the State. By coupling enforceable Fundamental Rights with aspirational Principles of Policy, the Constitution articulated a vision of governance in which power is restrained by law, liberty is animated by dignity, and democratic authority is directed toward social justice. This dual structure was never intended to create a hierarchy of importance between rights and policy, but a relationship of constitutional dialogue: rights to prevent tyranny, and policy to prevent indifference.
This article has traced the philosophical foundations, doctrinal evolution, and institutional setting of Part II, demonstrating that Pakistani constitutionalism gradually moved beyond a formalistic separation between justiciable rights and non-justiciable policy. Through purposive interpretation, courts infused Fundamental Rights with the ethical content of the Principles of Policy, most notably in environmental protection, access to justice, education, dignity, and due process. In doing so, Pakistani jurisprudence aligned itself with comparative constitutional traditions, particularly India’s synthesis of Fundamental Rights and Directive Principles and South Africa’s model of transformative constitutionalism. These experiences collectively affirm a central proposition: constitutional democracy requires both liberty and material conditions that make liberty meaningful.
The post-2025 constitutional amendments mark a decisive inflection point in this trajectory. By restructuring constitutional adjudication through the establishment of a Federal Constitutional Court, recalibrating judicial appointments, and curtailing judicial initiative, Pakistan has fundamentally altered the institutional environment in which Part II operates. This transformation does not repeal rights, but it re-situates their enforcement within a newly managed constitutional framework. The critical concern, therefore, is not the disappearance of constitutional guarantees, but the changing conditions under which they are interpreted, activated, and defended.
Constitutional experience, domestic and comparative, demonstrates that rights do not endure by textual proclamation alone. They survive through institutions that are structurally independent, normatively authoritative, and publicly legitimate. Pakistan’s own constitutional history, from Asma Jilani to Sindh High Court Bar Association, affirmed that judicial independence and constitutional supremacy are foundational features of the constitutional order. Comparative jurisprudence reinforces this insight: India’s basic structure doctrine and South Africa’s certification jurisprudence both insist that constitutional guardianship must remain insulated from political control, precisely because courts are tasked with restraining power.
The relocation of constitutional guardianship in the post-2025 order thus raises profound questions about the future of Part II. Where constitutional adjudication becomes fragmented, politically mediated, or procedurally constrained, rights risk being transformed from supreme normative commitments into administratively manageable claims. The Principles of Policy, in turn, risk being reduced from constitutional conscience to political rhetoric. A Constitution that aspires to dignity cannot survive on procedural compliance alone; it requires institutions capable of principled resistance.
Restoring constitutional vitality does not require regression or institutional nostalgia. It requires recalibration. Constitutional supremacy must be re-anchored through structural guarantees of judicial independence, coherent apex authority, meaningful access to constitutional remedies, and sustained interpretive synthesis between Fundamental Rights and the Principles of Policy. Only through such recalibration can Part II continue to function as a living charter—one that disciplines power, dignifies the citizen, and directs the State toward justice.
Ultimately, a Constitution endures not merely because it is enacted, but because it is believed in and defended. Part II is not an annex to Pakistan’s constitutional text; it is its soul. The future of Pakistan’s constitutional order will be determined by whether that soul remains institutionally protected, normatively supreme, and morally alive in a reconfigured constitutional landscape.
Refrences:
- Constitution of the Islamic Republic of Pakistan 1973.
- Asma Jilani v Government of Punjab PLD 1972 SC 139.
- Shehla Zia v WAPDA PLD 1994 SC 693.
- Benazir Bhutto v Federation of Pakistan PLD 1988 SC 416.
- Government of Balochistan v Azizullah Memon PLD 1993 SC 341.
- Al-Jehad Trust v Federation of Pakistan PLD 1996 SC 324.
- Sindh High Court Bar Association v Federation of Pakistan PLD 2009 SC 879.
- District Bar Association Rawalpindi v Federation of Pakistan PLD 2015 SC 401.
- Kesavananda Bharati v State of Kerala AIR 1973 SC 1461.
- Indira Nehru Gandhi v Raj Narain AIR 1975 SC 2299.
- Minerva Mills Ltd v Union of India AIR 1980 SC 1789.
- L Chandra Kumar v Union of India AIR 1997 SC 1125.
- Supreme Court Advocates-on-Record Association v Union of India (2016) 5 SCC 1 (NJAC Case).
- S v Makwanyane 1995 (3) SA 391 (CC).
- Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC).
- Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC).
- Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC).
- Hans Kelsen, Pure Theory of Law (2nd edn, University of California Press 1967).
- Upendra Baxi, The Indian Supreme Court and Politics (Eastern Book Company 1980).
- Mark Tushnet, Weak Courts, Strong Rights (Princeton University Press 2008).
- Karl Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146.
- Dieter Grimm, ‘Constitutionalism: Past, Present, and Future’ (2016) 38 OJLS 1.