The planned 27th Amendment to the constitution of Pakistan was unanimously passed by the Senate of Pakistan on November 10, by a vote of 64-0. The proposed changes to the constitution rest mainly on two fronts, the armed forces and the country’s judicature.
The proposals for both, the federal government argues, are meant to make the functioning of both institutions more efficient and streamlined. For instance, in the case of the creation of a Federal Constitutional Court, the idea is to separate the higher courts so that one of them – the constitutional court – will deal solely with matters relating to the constitution and its points of law, thereby leaving the other court, the Supreme Court, to deal with other cases that don’t relate to questions related to the constitution.
As for the armed forces, the proposed changes contained in the 27th Amendment to Article 243 are being pushed to modernise and streamline the operation and command of the armed forces. The argument is made that even India has created the post of chief of defence staff, whose task would be to act as a strategic adviser to the government of the day, led by the prime minister, on all matters related to the three services. The three services – army, navy and air force – will, of course, continue to be led by their respective service chiefs who will have complete operational control and command as before.
That said, the proposed changes raise many questions, not least about the checks and balances contained in the constitution and also regarding democratic governance in the country. For instance, the creation of a Federal Constitutional Court may be seen as an attempt to dilute the powers of the Supreme Court. The following proposed changed makes that crystal clear: “Any decision of the Federal Constitutional Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan including the Supreme Court.”
The other proposed change that also may be seen as restricting the independence and power of the superior judiciary relates to the transfer of high court judges.
Now, moving on to the proposed changes relating to Article 243 of the constitution. The federal government is well within its rights to legislate that armed forces officers may be elevated to the rank of field marshal, marshal of the air force or admiral of the fleet. However, a contentious debate has followed other proposals, especially those that say that all such officers will retain their title, privileges and rank for life. Furthermore, holders of these offices will enjoy the same constitutional protection afforded to the president of Pakistan by Article 248 – related to immunity.
While having such immunity may make sense while the official is holding the said office, anything beyond that would have been a stretch – something the final draft seems to have taken care of. The prime minister was also absolutely right in refusing to include any such constitutional immunity for his post after some of his supporters advocated such inclusion.
Any holder of public office or an appointed office, such as that of a service chief or a service chief who has been promoted etc, should be accountable and answerable for his/her actions to the constitution, given that he or she is appointed under the constitution to serve and protect the citizens and state of Pakistan. This is why lifetime immunity without any conditions would not have made sense.
The advantages of the proposals relating to Article 243, it has been argued, are that they create a clearer chain of command of the three services of the armed forces, and this would give the system greater clarity. However, it is difficult to justify and defend the grant of immunity for life, which in any case is not what Article 248 bestows on the office of the president. The proposals may also dilute civilian supremacy and remove constitutional checks and balances on a very important state institution. Of course, it may be argued that this was already the case in Pakistan – but to that a counter-question can easily be asked: So should that influence be accepted and in fact further expanded?
As for the proposals that relate to the judiciary, it has been argued that shifting the power to transfer superior court judges to a judicial commission while also increasing parliamentary oversight of the process of appointment and transfer of judges should strengthen democracy, since parliament is elected by the people. Of course, at the same time, it would be accurate to say that the passing of the 27th Amendment will mean that the Supreme Court of Pakistan will no longer be supreme.
At the very least, the draft of the proposed 27th Amendment should have been posted on the website of the National Assembly so that the general public could debate it, and so that they could at least be informed about the significant changes that have been proposed in the country’s polity. The aim and objective of any amendment to the constitution should unequivocally be to further the public good and make life better for citizens of Pakistan. They should not be seen as benefiting a single individual or institution at the expense of others.
The writer is a journalist based in Karachi. He tweets/posts omar_quraishi and can be reached at: omarrquraishigmail.com