27th Amendment: The end of an era
The fight against the 26th and 27th Amendments is a fight for every
Pakistani’s right to justice. It is not a fight to protect the judiciary for its own
sake.
After five days of heated debate, opposition protests, and last-
minute revisions, the 27th Constitutional Amendment Bill
was passed by Parliament on Thursday. A swift and
subsequent signature by the head of state, and it is now a reality.
With this, the separation of powers and basic structure established
by the 1973 Constitution of Pakistan — which envisioned an
independent judiciary and armed forces subservient to the civilian
dispensation — now stands terminated. The irony isn’t lost here that
instead of the military, an independent judiciary has been amended
away into a subservient department of the executive branch.
Two senior judges of the Supreme Court of Pakistan, both former
chief justices of their respective provincial high courts, and one who
should have been the incumbent Chief Justice of Pakistan,
have tendered their resignations on grounds of complete judicial
capture and constitutional distortion in the wake of the 27th
Amendment. More resignations from independent judges are
expected.
All of this has been achieved by a parliament that is widely
perceived to be unrepresentative of the polity.
Much has been written and said in the past few days condemning
the 27th Amendment and calling it the darkest chapter in Pakistan’s
constitutional and legal history. Funeral rites referenced and
obituaries have been written for the Supreme Court, in some cases
by those who actively abetted this murder. At the same time, the
military leadership has been able to secure constitutional and legal
cover for itself that previous dictators and hybrid regimes, of which
Pakistan has had many, have only dreamt of.
What is the 27th Amendment?
The amendment makes significant changes to the judicial system,
the military’s chain of command and grants sweeping immunities to
government officials.
A Federal Constitutional Court (FCC) has been established as the
apex court in Pakistan, while the Supreme Court has been reduced
to a final appellate court for civil and criminal matters. All matters of
a constitutional nature, including those involving disputes between
provincial and federal governments, public interest and the
enforcement of fundamental rights of the people, will be heard by
the FCC.
The chief justice and all judges of the first FCC will be handpicked by
the prime minister and the President and shall remain in office till
the age of 68. There is no stated criterion for the selection of these
judges. The FCC will not be bound by any earlier decision in the
decades-long jurisprudence of the Supreme Court, but the Supreme
Court and all other courts will be bound by the decisions of the FCC.
In the future, a Special Parliamentary Committee will select the chief
justices of the Supreme Court and the FCC from amongst the judges
of the respective courts. There is no stated criterion for a judge
being selected to either position. Previously, the senior-most judge
of the Supreme Court was automatically selected as the chief justice
of Pakistan without any selection by the government.
The Judicial Commission of Pakistan (JCP), which selects judges for
elevation to the Supreme Court, the FCC and the high courts by
voting, will be dominated by political, executive-branch members.
Only five out of 13 members of the JCP will be judicial appointments
(two executive-appointed FCC judges and two senior-most judges of
the SC, and one more judge of either court).
Before the 26th Amendment, the judges of the superior courts were
selected by a JCP which had a majority of judicial members; this
means that the judiciary was selecting judges from within itself
without being outvoted by the executive’s representatives on the
JCP.
The executive-dominated JCP will also have the power to
recommend the transfer of judges from one high court to another
through the President. If a judge does not accept the transfer, they
will undergo disciplinary proceedings (which are not public) before
the Supreme Judicial Council (consisting of executive-appointed
judges) and may be removed for misconduct. There is no stated
criterion on the basis of which judges may be transferred from one
court to another, and therefore no way of assessing whether there
are any legitimate grounds for transfer.
Amendments have also been made to grant lifetime immunity from
arrest, and all criminal and civil proceedings to the President and
anyone holding the ranks of Field Marshal, Admiral of the Fleet, and
Marshal of the Air Force. The position of the Chairman of the Joint
Chiefs of Staff Committee has been abolished. The National
Strategic Command has been transferred to the military. The army
chief will be the Chief of Defence Forces, making him the head of all
military services, including the army, navy and air force. The Field
Marshal has been empowered to retain his rank, privileges and
uniform for life.
And finally, there is another person-specific amendment which
allows Justice Yahya Afridi to retain his title of the CJP. After him, the
title may no longer reside at the Supreme Court.
Did the judiciary need this overhaul?
According to the regime, its unelected parliamentarians and pro-
regime opinion makers, these amendments are necessary to control
a superior judiciary that had become all-powerful and was stepping
outside its constitutional role.
Some judges, they say, are too “independent”, guilty of judicial
overreach, and that is not desirable. The Saqib Nisar, Khosa and
Bandial terms are particularly lamented.
Let’s divide “judicial overreach” into two categories. The first
category is where courts have interfered in politics or persecuted
politicians, and the second category is where courts have made
populist decisions that interfered with policy.
When courts have interfered with politics, endorsed martial laws or
removed prime ministers, it was not because they were
“independently” exercising their own preferences. It was because
they were too susceptible to pressure from certain quarters that
used them as tools for political engineering. Decisions in Maulvi
Tamizuddin, Dosso, Nusrat Bhutto, and Zulfiqar Ali Bhutto are a
testament to the courts being used to achieve state objectives and
not judicial preferences.
More recently, the judges of the Islamabad High Court, in a display
of historic courage and national spirit, through their letter to the
then-CJP Qazi Faez Isa and more recently through petitions before
the Supreme Court, have documented the kind of coercion and
pressure judges in this country are subject to when they act
“independently”.
Mere days ago, Justice Athar Minallah, in a letter to Chief Justice
Afridi, detailed the pressure judges were under before passing an
“undesirable” judgment in favour of the PTI in the reserved seats
matter.
Does this demonstrate a judiciary so “independent” that it must be
brought under executive control? Absolutely not.
In cases where the courts have acted out of socio-economic
populism and interfered with policy or the Supreme Court exercised
its original jurisdiction under Article 184(3), the record is mixed.
While there have been dam debacles, there has also been progress
for missing persons/enforced disappearances, women’s rights and
environmental actions.
There is no denying that there have been judicial excesses at times,
but the courts have also advanced fundamental rights and kept
creeping authoritarianism and state overreach in check. It’s possible
to acknowledge a mixed record without dismantling the entire
institution.
As with any evolving institution in a nascent, post-colonial
democracy prone to military takeovers, the judiciary has been
imperfect, sometimes excessive and at others more accommodating
of certain interests. If the problem is that the judiciary has been too
easily influenced or captured in the past, the solution cannot be to
strip it entirely of independence and render it beholden to the
executive.
Especially when the executive is as prone to elite/ military capture
as it is in Pakistan; this will only intensify the use of courts as a tool
for political engineering and punishing opponents, with no recourse
or hope of a dissenting opinion.
A more basic and easily debunked argument is that these changes
to judicial structure will solve the problem of case pendency and
litigation delays. This is a catchy lie. Cases at the Supreme Court
account for less than three per cent of pending cases nationwide.
The remaining case pendency is before the district and high courts,
where endemic issues of understaffing, underfunding, poor case
management, corruption and bribery, and a culture of litigation
continue unabated.
Parliamentary supremacy or constitutional democracy?
The regime and its friends will tell you that Parliament is supreme
and can amend the Constitution as it wishes. They will also tell you
that such amendments cannot be questioned by any court because
of Parliament’s absolute power to amend laws under Article 239 of
the Constitution.
There are several responses to this claim of parliamentary
supremacy. The first and most intellectually honest response is that
constitutional democracies and legal traditions across the world
disagree about the origin and distribution of power within a
constitutional separation of powers arrangement.
Common law systems such as the USA and India have stood by
constitutional supremacy. The courts have extensive powers of
judicial review, and in India and other countries, the basic structure
doctrine is recognised, which means that the basic features of the
constitution, such as separation of powers, democracy, and
independence of the judiciary, cannot be amended away by
parliament.
This indicates that the legislature cannot amend the basic social
contract into anything it desires simply because it has the
procedural ability to do so. The doctrine is also recognised by
the Supreme Court in District Bar Association Rawalpindi vs
Federation of Pakistan (PLD 2015 SC 401).
Separately, as argued by Justice Isa in his Rawalpindi Bar judgment,
the 1973 Constitution did not envision parliamentary sovereignty
which prevented courts from reviewing amendments. Article 239’s
bar on judicial review of amendments was introduced in the 8th
Amendment so a dictator, General Zia-ul-Haq, could maximise his
own power. Therefore, these provisions are inherently undemocratic
and illegitimate.
There is also the preamble to the 1973 Constitution, which seeks to
establish representative democracy, federalism and an independent
judiciary. If all of these features may be amended away, then what
is the nature of the constitutional document?
We should consider whether a strong, independent judiciary as a
watchdog of salient constitutional features is more likely to serve
our democracy and protect fundamental rights, or an entirely
unchecked parliament with unlimited legislative powers.
While reasonable (and honest) people may disagree about the
origins of constituent and amendment powers and constitutional
versus legislative supremacy, one thing should not be lost in the
noise of seemingly innocent democratic arguments: even if
parliament is supreme, an unrepresentative parliament, acting in
the interest of a select few, does not have the legitimacy to amend
the Constitution of Pakistan into oblivion.
Legitimate constitutional amendments are the product of
democratic consensus, public debate and transparent collaboration
over months and years, not the work of invisible forces rushed
through in hours and days.
The road to the present
Other worrying explanations for how we have ended up here include
a lack of resistance and truth-telling over the past several years, all
the way up to the passage of the Supreme Court (Practice and
Procedure) Act, 2023, and the 26th Amendment.
Dissonant positions born out of severe political partisanship and a
deep-rooted national cynicism about “how things are” in Pakistan
haven’t helped. Fear of a PTI populist wave and distrust of its
leadership caused many ‘progressives’ to cheerlead and justify one
encroachment on civilian supremacy after another.
Deep divisions within the senior judiciary following the reference
against Justice Isa resulted in the inability to put aside personal
agendas and opportunism to protect the institution. External actors
didn’t have to try very hard when, at every juncture, judges stood
ready to become collaborators, undermining each other and the
court in pursuit of personal gain or animosity.
Why should the average Pakistani care?
The 26th and 27th Amendments to the Constitution are the latest
assault on fundamental rights and democratic freedoms in Pakistan.
But they are part of the same coercive project that seeks to crush
the will of the people, keep their elected representatives out of
office, and entrench an unelected elite at the top.
No ordinary Pakistani, irrespective of political affiliation or
ideological gymnastics, will remain unaffected or benefit from the
collapse of the judiciary and the empowerment of military elites.
This will not stop here.
We already know the damage an executive-controlled court can do,
not just in our history, but in the conduct and decisions of the
Supreme Court’s Constitutional Bench following the 26th
Amendment. It reversed the SC’s reserved seats decision and gave
an unrepresentative majority to an unelected government by
denying reality. It allowed the secret court martials of ordinary
civilians. It allowed the transfer of judges as an instrument of
control. It argued in riddles and tautologies to justify the 26th
Amendment.
In exchange, Justice Aminuddin, who led this bench, has been
rewarded with the chief justiceship of the new FCC. As this piece is
being written, he takes the oath for the new position.
Whenever there is a violation of fundamental rights or unlawful acts
by the state, the matter will go before the FCC. When the state is
being tried by a court that it has hand-picked, the citizens will lose
every time.
The chaos created by artificially splitting constitutional and
appellate jurisdictions in the context of the Pakistani legal system,
with no precedent to guide it, will bring the entire system into
deadlock.
The state’s ability to transfer or deselect a judge anytime they show
defiance or “independence” will eliminate every judge’s ability to
stand up for citizens and prevent rare public victories. The fight
against the 26th and 27th Amendments is a fight for every
Pakistani’s right to justice. It is not a fight to protect the judiciary for
its own sake.
Where do we go from here?
In this moment, it is not enough to hope that these constitutional
amendments will end up in the dustbin of history by virtue of time.
There is a fundamental obligation on every Pakistani to resist the re-
writing of our relationship with the state through illegitimate means
by unrepresentative, undemocratic forces.
No leaders, political parties or bar councils are coming to our rescue.
Most are complicit, co-opted or coerced. The people will have to
come together, overcome our apathy and determine the course of
our future.
The resignations of Justices Mansoor Ali Shah and Athar Minallah
from the Supreme Court are a testament to the severity of the crisis.
But they are also a spark of hope and a reminder that individuals
can put aside personal gain in defence of greater principles.
As Justice Shah wrote, nations that prosper are those that place the
rule of law at the heart of their governance and preserve judicial
independence as a sacred trust.
He reminds us that the law is a calling of conscience. There is an
undeniable onus on judges and lawyers to defend the Constitution
and the independence of the judiciary against these amendments.
May every Pakistani judge, lawyer and citizen exercise their
conscience in these darkest of times?
