KARACHI: As discussions on the proposed 27th Amendment gather pace, analysts are warning that the changes under consideration could upend the country’s constitutional balance, while the government insists that any move will be made only by consensus and without “endangering democracy”.
The proposed 27th Amendment, which is said to include the creation of a Constitutional Court, 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 his support for the move, opposition politicians and constitutional lawyers see the proposals as part of a larger attempt to dilute the gains of the 18th Amendment.
On Monday, PPP Chairman Bilawal Bhutto-Zardari said the Prime Minister had approached his party to support the 27th Amendment.
Later in the evening talked with Pakinomist newsShahzeb Khanzada, political affairs adviser to Prime Minister Senator Rana Sanaullah, dismissed the controversy, saying the proposed amendment was “unnecessarily portrayed” as a storm and a bogeyman.
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 changes introduced “would not jeopardize democracy”. On the proposed Constitutional Court, he said there was no dispute about its formation as it was 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 cases more efficiently and sustainably”.
Still, not everyone is convinced. Speaking to journalist Hamid Mir, PTI Senator Barrister Ali Zafar accused the government of being “less than truthful” about its intentions. “Government ministers had lied and said that no 27th amendment was on the horizon. Now Bilawal Bhutto Zardari has realized this,” he said. “If they wanted to bring 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 be “tampering with the powers of the President and the NFC” and warned that any withdrawal of provincial autonomy would be tantamount to undoing the PPP’s 18th Amendment legacy.
However, Minister of Law and Attorney General Aqeel maintained that “discussions are ongoing regarding the 27th Amendment, but formal work has not yet begun”.
He confirmed that “the purpose of amending Article 243 is to constitutionally recognize the field marshal title conferred on the army chief”, 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 far deeper concerns. According to Supreme Court lawyer Hassan Abdullah Niazi, the proposed changes would “mark a tragic conclusion to the history of the 18th Amendment”.
He says what is being discussed will “restrict 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 this”, says Niazi, “would cut at the core of the constitutional order created by the 18th Amendment”. He adds that it is “amazing how the government believes people will buy their argument for a separate constitutional court when the experiment with a ‘constitutional court’ has not yielded efficiency or expediency.”
“This is essentially about consolidating control over an already hamstrung judiciary,” he warns, adding that such an arrangement would not only duplicate judicial structures but “create a parallel system of constitutional adjudication that is completely 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, its own process, judges and jurisdiction. It’s akin to the government creating a whole new judicial structure in Pakistan’s legal system”.
Such a move, he warns, “will lead directly to a flood of problems for lawyers, advocates and judges, as it is incredibly difficult to parse constitutional cases from ordinary 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/extension of Article 140-A to empower local governments, despite Punjab’s unanimous assembly including this part of the MQ and the coalition agreement requirement signed with PML-N”.
He believes that a constitutional court could “better be in line with several international models than the compromise solution from the constitutional court”, but has reservations about the electoral commission reforms being discussed.
“Breaking the ECP appointment logjam may result in re-appointment of the sitting CEC and ECP members for the next five years as proposed in the original draft of the 26th amendment. If that happens, it will be unfortunate and against the neutrality of the ECP,” he says.
Mehboob adds that while it would be difficult for the OPP to agree to any dilution of the current ring-fence of provincial shares in the divisible pool, “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 discuss the proposals.
Barrister Ali Tahir, meanwhile, gives a far more bleak assessment: “What remains of the existing constitutional structure is now being prepared for complete demolition”.
He views the revival of the Constitutional Court proposal as a response to “concerns in certain quarters” that the Supreme Court, while hearing the pending 26th Amendment case, could constitute a full court and possibly strike it down. “If that happens,” he says, “it would deal a very serious blow to the current hybrid political system”. That is why the Constitutional Court is pushing.
Describing the proposal to reinstate executive judges as “in direct contradiction to several Supreme Court judgments, notably the Sharf Faridi case”, Tahir warns that under Article 175, “the judiciary must remain completely independent of the executive”.
Bringing back executive power, he says, would mean that “whatever limited relief the courts are still able to give citizens may also be taken away”.
Tahir further says that plans to allow the transfer of judges under a government-controlled or executive-dominated body “would destroy the independence of the judiciary” and that tampering with Article 243 would amount to “institutionalizing a new civil-military imbalance or further entrenching the hybrid model”.
Hafiz Ehsaan Ahmad Khokhar, Advocate of the Supreme Court of Pakistan, 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 revealed serious coordination gaps and fragmentation in national policy-making”.
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 this development “signals the need for a measured restructuring”.
Khokhar also supports a constitutional court “equipped 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 says, “would prevent controversy by establishing clear jurisdictional boundaries, avoid internal legal conflict and ensure timely constitutional justice”.
Regarding Article 243, Khokhar says the amendment will “codify tenure limits, define terms of reappointment and introduce transparent procedural requirements for appointments of the chiefs of the army, navy and air staff”. He is also in favor of reviving the executive magistrate. Still, as Barrister Tahir warns, “there is a long way to go before consensus can be built to push something of this magnitude through Parliament”.
Originally published in The News
