THE 27th Constitutional Amendment Bill, passed by the Senate yesterday and expected in the National Assembly today, promises what its movers call ‘reform’. Unfortunately, for many legal minds, what it actually proposes is a rewriting of the judiciary as we know it.
Sitting smack in the middle of the outrage is the creation of a new Federal Constitutional Court (FCC), a body that is set to take over all questions of constitutional interpretation, disputes between the federation and provinces and cases involving the enforcement of fundamental rights. If anyone thinks these are procedural tweaks, perhaps they need to re-read the draft of the bill. In essence, these ‘tweaks’ go to the very core of the Supreme Court’s constitutional authority.
A new chapter will give the FCC a standing equal to, and separate from, the Supreme Court. But in practice, it will stand above it. The draft is unambiguous: “Any decision of the Federal Constitutional Court shall, to the extent that it decides a question of law or enunciates a principle of law, be binding on all other courts in Pakistan including the Supreme Court. Any decision of the Supreme Court… shall be binding on all other courts in Pakistan except the Federal Constitutional Court”.
In one paragraph, nearly a century of judicial hierarchy is inverted. The Supreme Court -- the ultimate interpreter of the constitution since always -- will no longer have the last word.
Sure, folks can make a more than respectable argument for having a separate constitutional court. Civil law countries such as Germany or Italy have long maintained such a distinction. But Pakistan runs on common law -- on continuity, hierarchy, precedent. Splitting the apex into two courts risks weakening both. And while the framers of this new model may see neat boxes, the lived reality will likely be chaos: cases bouncing between the FCC and the Supreme Court as registrars decide which forum counts as ‘constitutional enough’.
The changes don’t end there. Let’s move to the machinery that governs the judges themselves. Article 200, which deals with the transfer of high court judges, is to be amended so that consent is no longer required for such transfers. Thank the Lord for small mercies that the final draft has reportedly dropped the earlier ‘deemed retirement’ clause, which would have treated refusal of a transfer as voluntary retirement. Even without it, though, the message is clear: a judge’s posting, tenure and future are no longer entirely their own.
Other provisions reconstitute the Supreme Judicial Council. The SJC is to frame new rules and both the Supreme Court and the new FCC will have their chief justices sitting on it. The change does not, on paper, hand control to the executive, but it sure does tilt the balance of influence. The appointment of FCC judges will rest with the president and prime minister, while parliament will decide the court’s strength. Combined with the new transfer powers, the amendment builds a system in which judicial management -- not judicial independence -- may become the defining principle.
The official justification for all this is ‘efficiency’. Pakistan’s courts are overloaded, we are told, and a separate constitutional court will help unclog the system. But critics argue that the numbers don’t quite fit that narrative and that the real logjam sits in the trial and lower appellate courts -- spaces unironically untouched by this ‘reform’. The new court may ease congestion at the top, but it will do little for the millions waiting below.
So what does the 27th Amendment really achieve? Well, a lot -- if the prompt was just a shift in hierarchy and power. The Supreme Court will remain in name but not in function; the FCC’s decisions will bind all others; the Supreme Court’s will not bind the FCC. For a system built on precedent, such an inversion is not a joke.
Final verdict: a court rewritten is sometimes a court just written away.