By Laraib Mushtaq
The Peshawar High Court’s suspension of constitutional petitions has reignited a fundamental debate about the independence of the judiciary, the limits of executive power and the ability of courts to protect citizens when constitutional rights are at stake.
What does judicial independence really mean in a country where courts may be unable to hear citizens seeking protection against the exercise of state power, despite possessing constitutional authority to do so? Can the authority of the judiciary genuinely be considered meaningful when its jurisdiction becomes restricted precisely at the time when judicial scrutiny may be needed most? More importantly, what value does the constitutional guarantee of justice hold if an ordinary citizen cannot effectively invoke it?
After the Peshawar High Court (PHC) recently issued a notification directing the suspension of proceedings in Constitutional petitions under Article 199 of the constitution on or after 12 October 2026, these questions have acquired a new significance. Following a directive issued by the Federal Constitutional Court (FCC) on November 5, the administrative committee of the High Court instructed that the affected petitions should not be scheduled for hearing and that newly filed petitions should be returned with directions to approach the relevant forum.
There have already been significant consequences from the development. The high court reportedly removed about 105 petitions from its November 10 cause lists. These included petitions challenging emergency measures and the imposition of Governor’s Rule in Khyber Pakhtunkhwa, as well as cases involving alleged unlawful detentions, fundamental rights and the exercise of public authority. Therefore, what initially might seem to be a procedural development has sparked a much more important discussion regarding the real-world implications of judicial independence in Pakistan.
The controversy is not simply about whether a particular court can hear a particular category of cases. It concerns the relationship between the citizen, the state and the judiciary, and whether constitutional institutions can continue to provide meaningful protection during extraordinary political and security circumstances.
Judicial independence is widely regarded as one of the essential foundations of constitutional democracy. It requires courts to exercise their judicial authority without fear or favor, act impartially, and remain free from undue influence or interference. However, formal institutional separation and constitutional recognition of judicial functions are insufficient to define independence. It must also be demonstrated by the courts’ practical capacity to carry out their duties, assess the legitimacy of government actions, and offer efficient remedies in cases where rights have been infringed.
Article 175(3) of the Constitution of Pakistan, 1973, recognizes the importance of separating the judiciary from the executive, while Article 199 provides the High Courts with constitutional authority to exercise judicial review over public authorities and protect legal and fundamental rights. When taken as a whole, these clauses represent the fundamental constitutional idea that state power must always be subordinate to the law.
However, recent developments in Khyber Pakhtunkhwa raise a fundamental question: can judicial independence remain meaningful when access to constitutional jurisdiction is restricted in circumstances involving the exercise of extraordinary state powers? The deployment of armed forces in aid of civil power in Khyber Pakhtunkhwa, under an order issued on October 11 pursuant to Article 245 of the Constitution, led to the Federal Constitutional Court’s intervention. The FCC’s order addressed proceedings brought before the Peshawar High Court under Article 199 on or after October 12, referring to the constitutional restrictions associated with Article 245.
It’s critical to understand that judicial independence does not elevate courts above the Constitution. Every court’s jurisdiction is defined and constrained by legal and constitutional rules, and applying those provisions does not always amount to an attack on judicial independence. Nevertheless, the constitutional validity of a restriction and its implications for the effective administration of justice are two distinct questions that require careful consideration.
The relationship between executive action and the possibility of judicial review is the main source of concern. A fundamental institutional problem arises when a choice to use armed forces to support civil power triggers constitutional limitations on a high court’s jurisdiction. What safeguards ensure that exceptional state powers do not unnecessarily diminish the ability of citizens to obtain judicial protection? How can the constitutional system preserve meaningful accountability when the ordinary mechanisms of judicial scrutiny become restricted?
These questions are particularly significant because constitutional jurisdiction is not merely an institutional power vested in the judiciary. It is also a means through which individuals seek protection from unlawful exercises of authority. A person challenging an allegedly unlawful detention, a family seeking the recovery of a missing relative or a citizen contesting an administrative action does not approach a court simply to participate in constitutional litigation. Such individuals seek practical and immediate relief from circumstances that may threaten their liberty, security or legal rights.
The gap between the theoretical existence of constitutional rights and their effective enforcement can have significant consequences for these petitioners. A constitutional guarantee may provide far less protection than its language suggests if it cannot be successfully enforced when it is most needed.
Therefore, consideration of the Peshawar High Court’s suspension of proceedings should go beyond the petitioners’ political affiliations. The underlying idea is more general than any one government, political party, or public servant. When the state uses extraordinary powers, it raises the question of whether citizens still have recourse to effective legal remedies.
The direction to approach an appropriate forum is legally relevant and should not be ignored. However, it also gives rise to legitimate questions about whether alternative remedies are sufficiently clear, accessible and capable of providing timely relief, particularly in cases involving personal liberty. The existence of another potential legal avenue does not, by itself, establish that justice will remain equally accessible in practice.
The allocation of power among various state organs is the basis of Pakistan’s constitutional system. The judiciary resolves disputes within its constitutionally defined jurisdiction, the legislature enacts laws, and the executive carries out administrative functions. This division is meant to maintain accountability and stop the excessive concentration of power; it is more than just an organizational structure.
An independent court plays a crucial function in that framework by guaranteeing that persons in positions of public authority continue to be subject to the law. Judicial review provides an essential institutional mechanism for examining government actions against constitutional limitations. The consequences for institutional accountability cannot be dismissed when access to that mechanism is restricted, even in accordance with a clear constitutional obligation.
A constitutional democracy must be capable of handling real security threats. The Constitution itself considers some restrictions in situations where extraordinary circumstances can necessitate extraordinary legal measures. However, the protections available to individuals affected by the exercise of extraordinary powers must be evaluated alongside the legitimacy of those powers.
The question is not whether courts should disregard constitutional limitations in the name of independence. They should not. Rather, the question is whether the wider constitutional arrangement provides adequate safeguards to ensure that restrictions on one judicial forum do not leave citizens without effective access to justice.
Any fair evaluation of the Peshawar High Court notification must take this distinction into consideration. The court’s adherence to a Federal Constitutional Court order does not, by itself, demonstrate that its judges have compromised their independence or acted improperly. Nevertheless, citizens, legal professionals and constitutional experts may legitimately examine the broader implications of a binding judicial directive for judicial autonomy and fundamental rights.
In fact, the freedom of a constitutional system to allow for critical examination of the use and restraint of judicial power is an essential measure of its health. The phrase “judicial independence” shouldn’t be limited to institutional conflicts. It must continue to be a concept whose importance can be determined by how the legal system really functions.
Delays in procedures, the cost of litigation, unequal access to legal remedies, and public trust in the administration of justice have long been issues for Pakistan’s judicial system. These worries are further complicated by the current dispute. It calls into question not merely the speed at which courts can administer justice but also the conditions under which citizens can initially exercise their constitutional jurisdiction.
This uncertainty has consequences that go beyond ordinary litigants. Public trust in the judiciary rests on the belief that courts will continue to resolve disputes fairly and protect citizens’ rights within the framework of the Constitution. Confidence in the larger constitutional system may also be impacted when citizens start to doubt the availability of legal remedies.
In politically sensitive circumstances, such concern becomes more severe. Regardless of the identity of the parties appearing before them, judicial institutions are expected to remain unbiased. Their legitimacy rests on the principle that the protection of legal rights should not depend on institutional power, political affiliation or proximity to those in authority. Access to legal remedies should be guided by constitutional principles rather than political factors, regardless of the petitioner’s status as a political leader, activist, or ordinary citizen.
The scope of the latest restriction has also sparked discussion in legal circles. According to some legal interpretations, the Federal Constitutional Court’s order covers all petitions filed under Article 199 on or after October 12. However, others have questioned whether its application should be limited to issues pertaining to detention under the Maintenance of Public Order Ordinance. These variations highlight how crucial it is to interpret constitutional limitations clearly, especially when they have an impact on judicial access.
It is incorrect to think of an independent judiciary as an institution with unlimited power. Just as other organs of government must respect the constitutional limits of their jurisdiction, judicial independence demands that courts operate within the law. However, the effectiveness of a constitutional framework that restricts judicial review must also be assessed by examining whether adequate safeguards remain in place to protect citizens’ rights.
The distinction between institutional independence and practical judicial effectiveness is particularly important. Courts may remain formally independent in their decision-making while encountering constitutional limitations upon the matters they can hear. The existence of such limitations does not automatically establish institutional subordination, but it does require serious consideration of the adequacy of the protections that remain available.
The larger concern, therefore, is not that every restriction upon judicial jurisdiction necessarily destroys judicial independence. It is that independence loses much of its practical significance to ordinary people if the constitutional system cannot provide timely and effective remedies when their rights are at risk.
The protection provided to those who seek justice through the legal system ultimately determines a judiciary’s power, not the grandeur of its courtrooms or the official acknowledgement of its independence. The Constitution must be capable of doing more than defining institutions and allocating powers. It must also offer a significant foundation for defending individual rights and contesting public authority.
A serious national conversation about establishing a balance between state security, constitutional jurisdiction, judicial independence, and the defense of fundamental rights is made possible by the Peshawar High Court’s announcement. The explicit provisions of the Constitution must not be ignored in this discussion. At the same time, their practical application and its consequences for institutional accountability and fundamental rights must remain open to legal and public scrutiny.
Pakistan’s constitutional institutions must demonstrate that the rule of law remains meaningful even during extraordinary circumstances. Security measures and constitutional accountability need not be treated as mutually exclusive objectives. A functioning constitutional system should strive to accommodate legitimate public interests while ensuring that citizens retain effective protection against unlawful action.
Ultimately, the controversy surrounding the Peshawar High Court should not be reduced to a dispute over the authority of one judicial institution or the legality of one notification. It raises a much broader question about what judicial independence should mean for the people of Pakistan.
Ultimately, the question is not simply whether Pakistan has independent courts on paper, but whether citizens can rely on those courts when their fundamental rights are at risk. Judicial independence must have practical meaning beyond constitutional recognition and institutional separation. If the judiciary cannot provide effective remedies when citizens challenge the exercise of state power, the strength of Pakistan’s constitutional safeguards deserves serious examination.