Lawyers critical of the current situation blame the leadership of the higher judiciary for allowing the executive to invade.
Last week, the Lahore High Court asked the petitioner’s lawyer to submit a copy of the application he had filed with the federal government for deregistration of the Muttahida Qaumi Movement and allowed him to amend his petition. PHOTO: ARCHIVE
ISLAMABAD:
Following the successful implementation of the 26th Amendment, the federal government has begun consultations on a proposed 27th Amendment, a move that experts say could further alter key constitutional features and reshape the balance of power between the executive and the judiciary.
Pakistan People’s Party (PPP) Chairman Bilawal Bhutto Zardari formally revealed the features of the proposed amendment in a public statement, setting the stage for a new constitutional debate.
Former PPP senator Mustafa Nawaz Khokhar said the “core objective of the 27th Amendment is to amend Article 243, which deals with the command and control of the armed forces as well as the appointment of service chiefs. Everything else is just noise, open to negotiations and retreat,” he added.
However, experts believe that a consensus is already emerging within the government on one important element: the creation of a Federal Constitutional Court (FCC).
Yasser Kureshi, a researcher at the University of Oxford, said that despite differences between the PML-N and the PPP on other points, “there is likely to be consensus between them on the next steps to fragment and subordinate the judiciary through the 27th Amendment.”
He added that debates over judicial independence “are now largely irrelevant, especially since the 26th Amendment. What we have to ask is: how does the current regime seek to use and weaponize the judiciary and how does this amendment serve that purpose?”
“My understanding is that the role of the judiciary now is to act as a rubber stamp, providing legal cover to the executive branch’s efforts to organize and consolidate power,” Kureshi said.
He further noted that the establishment of the FCC “will mean that the government will be able to select its favorite judges for elevation, so that they can perform this role without facing institutional resistance or sharing space with more independent-minded judges.”
“The FCC will likely provide the legal cover the executive needs for its power reorganization agenda. This includes the subordination and bureaucratization of the rest of the judicial system,” he added.
Kureshi warned that judges seeking promotion to the FCC “will then have to ask themselves what else they will have to provide legal coverage for and what kind of reputation they will be left with in the end.”
Some senior lawyers, however, continue to support the government’s experiment with the Constitutional Bench (CB) within the Supreme Court, calling it a “successful model.” They point out that the executive-dominated Judicial Commission of Pakistan (JCP) can remove any CB judge at any time.
However, they warn that the situation would be markedly different at the FCC, where judges, once appointed, would continue in their position until their retirement.
Lawyers criticizing the current situation blame the leadership of the higher judiciary for allowing the encroachment of the executive branch. They question why the CB committee did not quickly schedule hearings for petitions challenging the 26th Amendment. Many argue that the delay in these hearings is what emboldened the executive’s dominance over judicial matters.
It was also learned that deliberations are currently underway to determine the first head of the proposed FCC.
Legal expert Hafiz Ehsaan Ahmad Khokhar offered a more reformist interpretation of the amendment process. He noted that while Parliament has clear powers under Article 239 to amend the Constitution, Pakistan “now faces a pressing need for consensus-driven and carefully considered reforms.”
He stressed that reforms “should not simply redistribute powers but also strengthen governance, institutional balance and public confidence in the federal system.”
Khokhar urged the government to engage political parties, provincial governments and constitutional bodies “in a broad national dialogue to craft reforms that are practical, inclusive and forward-looking.” The goal, he said, should be “a cooperative, modern and efficient federal structure, where the Federation, provinces and local governments work together to provide services effectively and maintain national cohesion.”
Citing the 18th Amendment (2010) as a milestone in provincial autonomy, Khokhar said its implementation had exposed gaps in coordination and policy formulation, while the abolition of the Concurrent Legislative List weakened uniformity in key sectors such as education, health and energy.
Similarly, he said, the 26th Amendment deepened internal judicial divisions rather than stabilizing institutions.
“These experiences underscore the need for a measured realignment, which preserves provincial autonomy while restoring the Federation’s ability to legislate and coordinate issues of collective national importance,” he noted.
Referring to Articles 141 to 149, Khokhar said the overlap of legislative powers between the federation and the provinces has been confusing. He proposed that the 27th Amendment restore harmony by clarifying jurisdictions, particularly in energy, educational standards, digital governance and environmental regulation. “Execution should be left to the provinces,” he said, “but Parliament must retain policy-making authority to ensure national coherence.”
Khokhar also called for reforms to Article 160, which governs income distribution, urging rational and transparent fiscal allocations. He proposed establishing Provincial Awards Commissions to ensure equitable distribution of resources among districts, thus promoting fiscal decentralization and accountability.
True devolution, he emphasized, “empowers citizens through local government rather than simply expanding provincial bureaucracies.” To this end, he proposed strengthening Article 140A and introducing a new Article 140B that mandates constitutionally protected elected local governments and periodic elections at the district and tehsil levels.
He also advocated for a Fourth Legislative Schedule dedicated exclusively to local government issues such as municipal regulation, urban planning, sanitation and community well-being.
Khokhar reiterated his support for a Constitutional Court, with exclusive jurisdiction over constitutional interpretation, intergovernmental disputes and fundamental rights litigation. “Similar courts should exist at both the federal and provincial levels,” he said, adding that they should have fixed terms and specialized judges representing all federated units.
After the 26th Amendment, he said, judicial authority has become “strained and ambiguous.” He argued that adopting a system similar to that of Germany or South Africa would clarify jurisdictional boundaries and “reduce the burden on the Supreme Court, allowing it to focus on appellate and policy issues.”
Furthermore, it highlighted the need for procedural reform under Article 243, which governs the command and appointments of service chiefs, recommending clearer term limits, transparent conditions for re-election, and consistency with judicial and electoral appointments.
Khokhar also commented on proposals to restore the Executive Judiciary, abolished in 2001, warning that its revival “should be limited, clearly defined and subject to judicial review to avoid overlaps and ensure accountability.”
Concluding, Hafiz Khokhar said that Pakistan “is at a crucial moment in its constitutional history.” The 27th Amendment, he said, should be treated not as a political maneuver but “as a national reform agenda aimed at strengthening legislative clarity, fiscal fairness, judicial independence, and institutional coherence.”
“With broad political consensus, careful drafting and inclusive dialogue, these reforms can strengthen democratic institutions, improve governance and lay the foundation for a modern, balanced and rules-based federation capable of addressing the challenges of the 21st century,” he added.
