KARACHI: As discussions over the proposed 27th Amendment gather pace, analysts warn that the changes being contemplated could upset the country’s constitutional balance, while the government insists that any measures will be taken only after consensus and without “endangering democracy”.
The proposed 27th Amendment, which is said to include the creation of a Constitutional Court, a possible reconfiguration of the National Finance Commission (NFC) Award and an amendment to Article 243, has sparked intense debate among political parties and legal experts.
While the PPP has confirmed that Prime Minister Shehbaz Sharif has sought its support for the measure, opposition politicians and constitutional lawyers see the proposals as part of a broader attempt to dilute the achievements of the 18th Amendment.
On Monday, PPP president Bilawal Bhutto-Zardari said the prime minister had approached his party to support the 27th Amendment.
Later that night, talking to Geographic newsShahzeb Khanzada, Adviser to Prime Minister on Political Affairs Senator Rana Sanaullah, dismissed the controversy and said the proposed amendment was being “unnecessarily portrayed” as a storm and a boogeyman.
He insisted that “discussions on the issues raised by Bilawal Bhutto have been going on for months” and that “no constitutional amendment will be made without complete consensus.”
Sanaullah said all stakeholders would be consulted before finalizing any draft and that any amendments introduced “would not endanger democracy”. Regarding the proposed Constitutional Court, he said that there was no disagreement over its formation since it is also part of the Charter of Democracy.
“Our position from day one has been that there should be a constitutional court,” he said. “Everyone agrees that such a court would handle matters more efficiently and sustainably.”
However, not everyone is convinced. Speaking to journalist Hamid Mir, PTI Senator Barrister Ali Zafar accused the government of being “disingenuous” about its intentions. “Government ministers had been lying and saying that there was no 27th amendment on the horizon. Now, Bilawal Bhutto Zardari has been clear about this,” he said. “If they wanted to table an amendment, there should have been a debate and then it should have been tabled in parliament.”
Barrister Zafar argued that the proposals appeared to “tinker with presidential powers and the NFC,” warning that any rollback of provincial autonomy would be tantamount to undoing the legacy of the PPP’s 18th Amendment.
However, the Minister of State for Law and Justice, Barrister Aqeel, maintained that “discussions on the 27th Amendment are taking place, but formal work has not yet begun.”
He confirmed that “the objective of the modification of article 243 is to constitutionally recognize the title of field marshal granted to the head of the army”, that the points of the amendment “were not final” and that civil society would be consulted on the amendment.
Legal and constitutional experts contacted by The news expressed much deeper concerns. According to high court attorney Hassan Abdullah Niazi, the proposed changes “would mark a tragic conclusion to the history of the 18th Amendment.”
He says what is being discussed “would reduce judicial independence through a special court, allow members of the executive to act as judges, weaken provincial autonomy and expand the role of the military.”
“All of this,” Niazi says, “would sever to the very core of the constitutional order created by the 18th Amendment.” He adds that it is “baffling how the government believes that the people will accept its argument for an independent constitutional court when the experiment of a ‘constitutional court’ has failed to offer efficiency or convenience.”
“It is mainly about consolidating control over an already paralyzed judiciary,” he warns, adding that such an agreement would not only double judicial structures but “create a parallel system of constitutional adjudication totally susceptible to political pressure.”
Explaining the concept, Niazi says a constitutional court “would probably be completely separate from the current Supreme Court. It would have its own staff, process, judges and jurisdiction. It is akin to the government creating an entirely new judicial structure within Pakistan’s legal system.”
Such a move, he warns, “will directly lead to an avalanche of problems for litigants, lawyers and judges, as it is incredibly difficult to separate constitutional cases from regular disputes in Pakistan.”
PILDAT president Ahmed Bilal Mehboob says the proposed components of the amendment reflect “the unfinished agenda of the 26th Amendment”, and while the idea itself is not unexpected, what surprised him was “the absence of amendment/expansion of Article 140-A to empower local governments, despite the Punjab Assembly unanimously demanding this amendment and the MQM including it as part of the coalition agreement signed with the PML-N”.
He believes that a Constitutional Court could “better conform to various international models than the compromise solution of the Constitutional Court”, but has reservations about the Electoral Commission reforms that are being discussed.
“Breaking the deadlock on ECP appointments may result in the re-election of the current CEC and ECP members for the next five years, as proposed in the initial draft of the 26th Amendment. If it happens, it will be unfortunate and contrary to the neutrality of the ECP,” he says.
Mehboob adds that while it would be difficult for the PPP to accept any dilution of the current protection of provincial shares in the divisible fund, “the growing need to increase defense spending may convince them and representatives of smaller provinces.” He also suggests that other parties should emulate the PPP’s move of calling a meeting of its CEC to deliberate on the proposals.
Meanwhile, lawyer Ali Tahir offers a much bleaker assessment: “What remains of the existing constitutional structure is now being prepared for complete demolition.”
He sees the revival of the Constitutional Court proposal as a response to “concern from certain quarters” that the Supreme Court, hearing the pending 26th Amendment case, could constitute a full court and possibly overthrow it. “If that happens,” he says, “it would be a very serious blow to the current hybrid political arrangement.” Hence the impulse of the Constitutional Court.
Tahir describes the proposal to reintroduce executive magistrates as “in direct conflict with several judgments of the Supreme Court, in particular the Sharf Faridi case”, warning that under Article 175, “the judiciary must remain completely independent of the executive”.
Regaining the executive judiciary, he says, would mean that “any limited relief that courts can still grant to citizens could also disappear.”
Tahir further says that plans to allow the transfer of judges under a government-controlled or executive-dominated body would “destroy judicial independence,” and that altering Article 243 would amount to “institutionalizing a new civil-military imbalance or further entrenching the hybrid model.”
Hafiz Ehsaan Ahmad Khokhar, Advocate of Pakistan’s Supreme Court, calls for “a broad-based national dialogue involving all political parties, constitutional institutions and provincial governments to introduce reforms that bring clarity, legislative competence and predictability to Pakistan’s constitutional and governance framework.”
Khokhar says the 18th Amendment was a landmark reform, but “the experience of its implementation exposed serious coordination gaps and fragmentation in national policymaking.”
The abolition of the Concurrent Legislative List, he says, weakened uniformity in critical areas and the 26th Amendment ended up deepening “internal divisions within the judiciary.” Khokar says these developments “point to the need for a measured realignment.”
Khokhar also supports a Constitutional Court “endowed with exclusive jurisdiction over constitutional interpretation, inter-governmental disputes and fundamental rights litigation, which would consequently lessen the burden on ordinary high courts and the Supreme Court.” Such a court, he states, “would avoid controversies by establishing clear jurisdictional boundaries, avoiding internal judicial conflicts, and ensuring timely constitutional justice.”
On Article 243, Khokhar says the amendment should “codify term limits, define the conditions of re-election and introduce transparent procedural requirements for the appointments of the heads of the army, navy and air staff.” He is also in favor of reactivating the executive judiciary. Still, as lawyer Tahir warns, “there is a long way to go before a consensus can be achieved to push something of this magnitude through parliament.”
Originally published in The News
