Lawyers critical of the current situation blame the leadership of the superior judiciary for allowing executive intervention
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 Muttahida Qaumi Movement’s registration 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 experts say could further change key constitutional features and reshape the balance of power between the executive and judiciary.
Pakistan Peoples Party (PPP) Chairman Bilawal Bhutto Zardari formally unveiled the features of the proposed amendment in a public statement that set the stage for a fresh constitutional debate.
Former PPP senator Mustafa Nawaz Khokhar said the 27th amendment’s “core objective is to amend 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 negotiation and withdrawal,” he added.
However, experts believe that a consensus is already emerging in the government on an 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 probably consensus among them to take the next steps in fragmenting and subordinating the judiciary through the 27th Amendment”.
He added that debates about judicial independence “are now largely irrelevant, especially since the 26th Amendment. What we should be asking instead 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 is now to act as a rubber stamp that provides legal cover for the efforts of the executive to organize and consolidate power,” Kureshi said.
He further noted that the establishment of the FCC “will mean that the government will get to handpick its preferred judges for elevation, so that they can play that role without facing institutional opposition or sharing space with more independent judges.”
“The FCC is likely to provide the legal cover the executive branch needs for its power reorganization agenda. This includes subordinating and bureaucratizing the rest of the judicial system,” he added.
Kureshi warned that judges seeking elevation to the FCC “will then have to ask what else they’re going to provide legal cover for — and what kind of reputation they’re going to be left with at the end.”
However, some senior lawyers continue to support the government’s experiment with the Constitutional Court (CB) in the Supreme Court, calling it a “successful model.” They point out that the executive-dominated Judicial Commission of Pakistan (JCP) can remove any judge from the CB at any time.
Yet they caution that the situation would be markedly different at the FCC, where judges, once appointed, would continue until retirement.
Lawyers critical of the current situation blame the leadership of the superior judiciary for allowing executive intervention. They question why the CB Committee did not immediately set hearings for petitions challenging the 26th Amendment. Many argue that the delay in these hearings is what strengthened the dominance of the executive branch over judicial matters.
It is 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 an urgent need for carefully considered, consensus-driven reforms.”
He emphasized that reforms “should not only 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 make 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 deliver services efficiently 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-making, 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 transition—one that preserves provincial autonomy while restoring the federation’s capacity to legislate and coordinate on issues of collective national importance,” he noted.
Referring to Articles 141-149, Khokhar said that overlapping legislative powers between the federation and the provinces have caused confusion. He suggested that the 27th Amendment restored harmony by clarifying jurisdictions, particularly in energy, education standards, digital governance and environmental regulation. “Execution should remain with the provinces,” he said, “but Parliament must retain policy-making authority to ensure national coherence.”
Khokhar also called for reforms in Article 160, which regulates revenue distribution, and calls for rational and transparent tax allocations. He suggested setting up Provincial Award Commissions to ensure equitable distribution of resources among districts, thereby promoting fiscal decentralization and accountability.
True decentralization, he emphasized, “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 that mandates constitutionally protected elected local governments and regular elections at the district and tehsil levels.
He also advocated a fourth legislative list devoted exclusively to local government subjects such as municipal regulation, town planning, sanitation and community welfare.
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 these should have fixed terms of office and specialized judges representing all federating units.
After the 26th Amendment, he said, judicial authority has become “strained and ambiguous.” Adopting a system similar to Germany or South Africa, he argued, would clarify jurisdictional boundaries and “reduce the Supreme Court’s burden so it can focus on appellate and policy issues.”
He further emphasized the need for procedural reforms under Article 243, which regulates the command and appointment of service chiefs, recommending clearer term limits, transparent reappointment conditions, and consistency with judicial and electoral appointments.
Khokhar also commented on proposals to restore the executive magistracy, which was abolished in 2001, warning that its revival “should be limited, clearly defined and subject to judicial review to prevent overlap and ensure accountability.”
Concluding, Hafiz Khokhar said that Pakistan “stands at a crucial juncture in its constitutional history.” The 27th Amendment, he said, should not be treated 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.
