Abstract
The 26th and proposed 27th Constitutional Amendments to the Constitution of Pakistan represent a decisive reshaping of the country’s judicial architecture. While ostensibly aimed at “reform” and “efficiency,” they alter the balance among the legislative, executive, and judicial branches, threaten the independence of the courts, and challenge the very Grundnorm of the 1973 Constitution. This article critically analyses these amendments within the framework of Pakistan’s adversarial common-law system, exploring their implications for judicial independence, the trichotomy of powers, and constitutional supremacy. Drawing comparative lessons from India, the United States, the United Kingdom, and Kelsenian constitutional courts in Europe, the study argues that these reforms undermine the structural and philosophical foundations of Pakistan’s constitutional order.
I. The Judiciary in a Common-Law Adversarial System
Pakistan’s constitutional framework is rooted in the common-law tradition, where the judiciary’s independence and the doctrine of precedent underpin the rule of law. In such systems, the Supreme Court is not only the final appellate tribunal but also the ultimate guardian of constitutional interpretation and fundamental rights. Any attempt to restructure its powers or alter its independence therefore disrupts the very logic of the adversarial legal order.
A. The 26th Amendment (2024): Curtailing Judicial Independence
- Limiting Suo Motu Jurisdiction
The 26th Amendment transferred the Supreme Court’s suo motu power under Article 184(3) to a judicial panel, effectively curtailing the Chief Justice’s ability to act on matters of fundamental rights. In a common-law adversarial framework, the court’s power to initiate proceedings suo motu serves as a vital check on executive excess. Its dilution transforms an organic judicial safeguard into a bureaucratic formality. - Politicising Appointments and Tenure
The amendment restructured the Judicial Commission of Pakistan (JCP) and increased the parliamentary role in selecting judges and the Chief Justice. By replacing seniority with political consensus, it erodes the convention of impartial, merit-based judicial elevation—central to the autonomy of common-law judiciaries. - Constitutional Bench Mechanism
The creation of a fixed Constitutional Bench within the Supreme Court introduced an administrative filter that could be politically influenced. This arrangement risks channelling constitutional controversies toward particular benches, thereby compromising judicial neutrality in politically sensitive litigation.
B. The 27th Amendment (Proposed): Creating a Federal Constitutional Court
- Dethroning the Supreme Court
The proposed 27th Amendment establishes a Federal Constitutional Court (FCC) with jurisdiction over all constitutional questions. Its decisions would bind the Supreme Court, effectively demoting the latter’s constitutional authority—a radical departure from the common-law model, where the apex court ordinarily integrates appellate and constitutional jurisdiction. - Executive Dominance in Appointments
Under the proposal, the President, acting on the Prime Minister’s advice, would appoint the FCC’s founding judges, granting the executive decisive influence over the new court’s composition. This threatens to turn the constitutional guardian into an instrument of political convenience. - Transfers and Tenure Control
The JCP’s new power to transfer judges—where refusal implies retirement—further undermines judicial security of tenure, discouraging independence and inviting compliance with political expectations. - Immunity and Entrenchment of Power
Perhaps most troubling are the provisions granting lifetime immunity to the President and entrenching the military’s upper command constitutionally. Such immunities contradict the rule-of-law premise that all public officials remain answerable before ordinary courts.
II. Conflict with Grundnorm and Trichotomy of Powers
A. Violation of the Grundnorm
In Kelsen’s theory, the Grundnorm—the presupposed higher norm—anchors the legitimacy of all subordinate norms. For Pakistan, the 1973 Constitution functions as this Grundnorm, embedding Islamic principles, federalism, parliamentary democracy, and judicial independence as its immutable features.
The Supreme Court, in cases such as Zafar Ali Shah v Pervez Musharraf (PLD 2000 SC 869) and Shariat Petition No. 1 of 1992, recognised these features as forming an unamendable “basic structure.” By empowering political actors to dominate judicial appointments and curtailing the Court’s jurisdiction, the 26th and 27th Amendments attempt to reconstruct, rather than amend, that basic norm. They substitute the supremacy of the Constitution with the supremacy of Parliament and the Executive—an inversion of the hierarchy on which constitutional legality rests.
B. Erosion of the Trichotomy of Powers
The doctrine of separation—or trichotomy—of powers divides the functions of the state among the Legislature, Executive, and Judiciary. Its aim is to prevent the concentration of power and to preserve checks and balances.
- Encroachment by the Legislature and Executive
Expanding the parliamentary role in judicial appointments, removing the Chief Justice’s discretion over bench formation, and imposing executive control over tenure constitute direct incursions into the judicial domain. - Fusion of Powers and Weakening Checks
The 26th and 27th Amendments collapse institutional boundaries. They create a “fusion of powers” antithetical to the adversarial common-law tradition, transforming the judiciary from an independent arbiter into a component of governmental machinery.
III. Comparative and Historical Perspective
A. Comparative Analysis
| Feature | Pakistan (Post-26th/27th) | India | United States | United Kingdom |
| Judicial Appointment | Heightened political control via JCP and Parliamentary Committee | Collegium system (judges appoint judges) | Presidential nomination + Senate confirmation | Independent Judicial Appointments Commission |
| Constitutional Jurisdiction | Supreme Court curtailed; FCC proposed | Supreme Court has final word (Arts 32, 142) | Supreme Court has original and appellate jurisdiction | Parliamentary supremacy limits judicial review |
| Judicial Review / Basic Structure | Threatened by politicised reform | Kesavananda Bharati (1973) protects core features | Marbury v Madison (1803) anchors judicial review | Review limited; political remedies prevail |
Pakistan’s trajectory diverges from India and the US, where apex courts guard the Constitution through doctrines such as “basic structure” and “judicial review.” Instead, Pakistan edges toward a hybrid model resembling post-authoritarian “constitutional courts,” yet without their insulation or legitimacy.
B. Kelsenian Model Misapplied
Kelsen’s Austrian constitutional court (1920) inspired the European model of centralized review, later adopted by Germany and Italy. However, those courts were designed to protect democracy, not to subordinate existing supreme courts. Judges enjoy non-renewable terms, cross-institutional appointment, and independence from current political majorities. Pakistan’s proposed FCC borrows the form but omits the safeguards, risking an instrument of political control rather than constitutional guardianship.
C. Historical Continuity of Executive Domination
Pakistan’s constitutional history reveals recurring attempts by the executive or military to constrain judicial independence:
- Doctrine of Necessity (State v Dosso [1958]; Asma Jilani v Government of Punjab [1972]*) validated extra-constitutional rule.
- 8th and 17th Amendments expanded presidential powers at the expense of Parliament and courts.
- Judges’ Restoration Movement (2007–09) restored judicial independence and inspired the 18th and 19th Amendments strengthening the JCP.
The 26th and 27th Amendments reverse that progress, reviving patterns of domination reminiscent of prior constitutional crises.
IV. Doctrinal and Practical Implications
- Undermining Adversarial Neutrality
By allowing political bodies to determine who judges constitutional cases, the amendments jeopardise the impartiality essential to adversarial adjudication. - Fragmentation of Precedent and Forum Shopping
Dual apex courts—Supreme Court and FCC—invite conflicting jurisprudence and uncertainty, eroding the coherence of precedent that defines the common law. - Weakening Public Interest Litigation
Restricting Article 184(3) and re-routing constitutional petitions will narrow access to justice for citizens and civil-society actors, especially on rights-based issues. - Immunity and Unaccountability
Embedding executive and military immunities constitutionalises inequality before the law, striking at the heart of the rule-of-law doctrine.
V. Conclusion
The 26th and 27th Amendments signify more than procedural reform—they amount to a constitutional counter-revolution. By capturing judicial appointments, diminishing the Supreme Court, and elevating political and military elites beyond legal scrutiny, they displace the very Grundnorm that legitimises the Pakistani state. Rather than refining the trichotomy of powers, they collapse it into a hierarchy dominated by the legislature and executive.
Comparatively, successful constitutional courts (Austria, Germany, South Africa) emerged from broad consensus and serve to deepen, not diminish, constitutionalism. Pakistan’s current model lacks such consensus and risks transforming the judiciary into a subsidiary of the political order. If enacted without safeguards, these amendments would erode the independence of the judiciary, distort the adversarial common-law system, and unravel the delicate constitutional balance painstakingly rebuilt since 2009. In essence, they are antithetical to the rule of law and to the enduring spirit of the 1973 Constitution itself.