KARACHI: As discussions on the proposed 27th Amendment gather pace, analysts warn that the planned changes could upset the country’s constitutional balance, while the government insists that any decision will be taken only after consensus and without “endangering democracy”.
The proposed 27th Amendment, which would 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 confirmed that Prime Minister Shehbaz Sharif had sought its support for the move, opposition politicians and constitutionalists see the proposals as part of a broader attempt to dilute the gains of the 18th Amendment.
On Monday, PPP Chairman Bilawal Bhutto-Zardari said the prime minister had contacted his party to seek its support for the 27th Amendment.
Later that night, talking to PK Press Club NewsShahzeb Khanzada, Advisor to the Prime Minister on Political Affairs, Senator Rana Sanaullah dismissed the controversy, saying the proposed amendment was “unnecessarily portrayed” as a storm and a scarecrow.
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 a draft was finalized and that any amendments introduced “would not endanger democracy”. Regarding the proposed Constitutional Court, he said there was no disagreement over its creation since it was also part of the Charter of Democracy.
“Our position from day one has been that a constitutional court should exist,” he said. “Everyone agrees that such a court would handle cases more efficiently and sustainably.”
However, not everyone is convinced. Speaking to journalist Hamid Mir, PTI senator Ali Zafar’s lawyer accused the government of being “far from truthful” about its intentions. “Government ministers lied and said no 27th Amendment was on the horizon. Now Bilawal Bhutto Zardari has been clear on this,” he said. “If they wanted to propose an amendment, there should have been a debate and then it should have been presented to Parliament.”
Lawyer Zafar argued that the proposals appeared to “tinker with presidential powers and the NFC”, warning that any rollback of provincial autonomy would amount to destroying the legacy of the PPP’s 18th Amendment.
State Minister for Law and Justice, Barrister Aqeel, however, said that “discussions are ongoing regarding the 27th Amendment, but formal work has not yet started”.
He confirmed that “the aim of the modification of article 243 is to constitutionally recognize the title of marshal attributed to the head of the army”, that the points of the amendment were “not definitive” and that civil society would be consulted on the amendment.
Legal and constitutional experts contacted by News expressed much deeper concerns. According to High Court lawyer Hassan Abdullah Niazi, the proposed changes “would mark a tragic conclusion to the history of the 18th Amendment.”
He says what is under discussion would “reduce judicial independence via 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 said, “would go against the very heart of the constitutional order created by the 18th Amendment.” He adds that it is “disconcerting how the government believes that the people will buy into its argument for a separate constitutional court when the experiment in ‘constitutional training’ has failed to bring effective or timely results.”
“It is primarily about consolidating control over an already paralyzed judicial system,” he warns, adding that such an arrangement would not only duplicate judicial structures but “create a parallel system of constitutional adjudication entirely vulnerable 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, its own procedure, its own judges and its own jurisdiction. This 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 a flood of problems for litigants, lawyers and judges, as it is incredibly difficult to parse constitutional cases from the usual disputes in Pakistan.”
PILDAT President Ahmed Bilal Mehboob said the proposed elements of the amendment reflect “the unfinished agenda of the 26th Amendment”, and while the idea itself was not unexpected, what surprised him was “the absence of amendment/expansion of Article 140-A to empower local governments, despite the fact that the Punjab Assembly unanimously demanded this amendment and the MQM included it in the coalition agreement signed with the PML-N.”
He believes that a Constitutional Court could “comply better with several international models than the compromise solution of the Constitutional Chamber”, but he has reservations about the reforms of the Electoral Commission currently being discussed.
“Resolving the deadlock on ECP appointments could result in the reappointment of current CEC and ECP members for the next five years, as was proposed in the original draft of the 26th Amendment. If this happens, it will be unfortunate and would go against the neutrality of the ECP,” he said.
Mehboob adds that while it would be difficult for the PPP to accept a dilution of the current distribution of provincial shares in the divisible pool, “the growing need to increase defense spending could convince them and representatives of smaller provinces.” He also suggests that other parties should emulate the PPP’s move by convening a meeting of its CEC to deliberate on the proposals.
Lawyer Ali Tahir, for his part, draws 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 “concerns among some” that the Supreme Court, in hearing the pending 26th Amendment case, might constitute a full bench and possibly overturn it. “If this happened,” he said, “it would be a very serious blow to the current hybrid political arrangement.” Hence the push from the Constitutional Court.
Tahir describes the proposal to reintroduce executive magistrates as “in direct conflict with several Supreme Court judgments, notably the Sharf Faridi case”, warning that under Article 175, “the judiciary must remain completely independent of the executive”.
According to him, restoring the executive judiciary would mean that “the limited measures that the courts are still able to grant to citizens could also be removed.”
Tahir further claims that plans to allow the transfer of judges under a government-controlled or executive-dominated body would “destroy judicial independence” and that amending Article 243 would amount to “institutionalizing a new civil-military imbalance or further entrenching the hybrid model.”
Hafiz Ehsaan Ahmad Khokhar, lawyer at the Supreme Court of Pakistan, calls for “a broad 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 argues that the 18th Amendment constitutes a historic reform, but that “the experience of its implementation has revealed serious coordination gaps and fragmentation of national policymaking.”
The abolition of the concurrent legislative list, he says, weakened uniformity in critical areas and the 26th Amendment ended up worsening “internal divisions within the judiciary.” Khokar says these developments “signal the need for measured realignment.”
Khokhar also supports a Constitutional Court “with exclusive jurisdiction over constitutional interpretation, intergovernmental disputes and fundamental rights litigation, which would consequently reduce the burden on ordinary high courts and the Supreme Court.” Such a court, he said, “would prevent controversies by establishing clear jurisdictional boundaries, avoiding internal judicial conflicts, and ensuring timely constitutional justice.”
Regarding Article 243, Khokhar says the amendment should “codify term limits, define renewal conditions, and introduce transparent procedural requirements for the appointment of the chiefs of staff of the army, navy, and air staff.” He is also in favor of reviving the executive judiciary. Yet, as lawyer Tahir warns, “there is a long way to go before consensus can be reached to get something of this magnitude through Parliament”.
Originally published in The News
