Lawyers critical of the current situation accuse leaders of the higher judiciary of enabling executive encroachment
The Lahore High Court last week asked the petitioner’s lawyer to submit a copy of the application he had filed with the federal government for cancellation of the registration of the Muttahida Qaumi Movement and allowed him to amend his petition. PHOTO: FILE
ISLAMABAD:
Following the successful implementation of the 26th Amendment, the federal government has launched 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 judiciary.
Pakistan People’s Party (PPP) Chairman Bilawal Bhutto Zardari officially unveiled the features of the proposed amendment in a public statement, paving the way for a new constitutional debate.
Former PPP senator Mustafa Nawaz Khokhar said the 27th Amendment “mainly aimed at amending Article 243, which deals with the control and command of the armed forces, as well as the appointment of service chiefs. Everything else is just noise, open to negotiations and withdrawal,” he added.
However, experts believe that a consensus is already emerging within the government on one major 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 issues, “there is likely to be a consensus between them on the need to take the next steps of fragmentation and subordination of the judiciary through the 27th Amendment.”
He added that debates over judicial independence “are now largely irrelevant, especially since the 26th Amendment. What we must instead ask is: how does the current regime seek to use and arm the judiciary and how does this amendment meet that goal.”
“It is my understanding that the role of the judiciary now is to act as a buffer, providing legal cover for the executive branch’s efforts to organize and consolidate power,” Kureshi said.
He further observed that the creation of the FCC “will mean that the government will be able to select its preferred judges to elevate so that they can play 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 justice 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 cover for — and what kind of reputation they will have in the end.”
Some senior lawyers, however, continue to support the government’s experiment with the Constitutional Chamber (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 BC judge at any time.
However, they caution that the situation would be significantly different within the FCC, where judges, once appointed, would remain in office until retirement.
Lawyers critical of the current situation accuse leaders of the higher judiciary of enabling executive encroachment. They wonder why the CB committee did not quickly schedule hearings for petitions challenging the 26th Amendment. Many say the delay in these hearings is what has reinforced the executive’s dominance over court cases.
We also learn 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 holds clear powers under Article 239 to amend the Constitution, Pakistan “now faces an urgent need for carefully considered and consensus-based reforms.”
He stressed that reforms “should not just redistribute powers, but also strengthen governance, institutional balance and public confidence in the federal system.”
Khokhar urged the government to involve political parties, provincial governments and constitutional bodies “in a broad national dialogue to develop practical, inclusive and forward-looking reforms.” The goal, he said, should be “a cooperative, modern and efficient federal structure, in which the Federation, provinces and local governments work together to deliver services efficiently and maintain national cohesion.”
Citing the 18th Amendment (2010) as a milestone in provincial autonomy, Khokhar said its implementation exposed gaps in coordination and policymaking, while the abolition of the concurrent legislative list weakened uniformity in key sectors such as education, health and energy.
Likewise, he added, the 26th Amendment deepened internal judicial divisions instead of stabilizing institutions.
“These experiences highlight the need for measured realignment – one that preserves provincial autonomy while restoring the Federation’s ability to legislate and coordinate on matters of national collective importance,” he stressed.
Referring to Articles 141 to 149, Khokhar said overlapping legislative powers between the federation and provinces has created confusion. He proposed that the 27th Amendment would restore harmony by clarifying jurisdictions, including on energy, educational standards, digital governance and environmental regulations. “Execution should remain a provincial responsibility,” he said, “but Parliament must retain policy-making power to ensure national coherence.”
Khokhar also called for reforms to Article 160, which governs income distribution, calling for rational and transparent budget allocations. He proposed establishing provincial awards commissions to ensure equitable distribution of resources among districts, thereby promoting fiscal decentralization and accountability.
True decentralization, he stressed, “empowers citizens through local governments rather than simply expanding provincial bureaucracies.” To this end, he proposed to strengthen Article 140A and introduce a new Article 140B making constitutionally protected elected local governments and regular elections at district and tehsil levels mandatory.
He also advocated for a fourth legislative list devoted exclusively to local government subjects such as municipal regulations, urban planning, sanitation and community welfare.
Khokhar reiterated his support for a Constitutional Court, with exclusive jurisdiction over constitutional interpretation, intergovernmental disputes and fundamental rights disputes. “Similar courts should exist at the federal and provincial levels,” he said, adding that these should have fixed terms of reference and specialized judges representing all federating units.
After the 26th Amendment, he said, judicial authority became “strained and ambiguous.” Adopting a system similar to that in Germany or South Africa, he argued, would clarify jurisdictional boundaries and “reduce the burden on the Supreme Court, allowing it to focus on appellate and policy issues.”
He further highlighted the need for procedural reform under Article 243, which governs the command and appointment of service chiefs, recommending clearer term limits, transparent renewal requirements, 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 duplication and ensure accountability.”
In conclusion, Hafiz Khokhar said that Pakistan “stands at a crucial turning point 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, tax 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 foundations for a modern, balanced, rules-based federation capable of meeting the challenges of the 21st century,” he added.
