“They have never even studied Pakistan’s separation of powers – nor have they ever read about constitutional supremacy”, declared the minister for information in the National Assembly’s session on the 27th Amendment.
The irony is poetic: the minister was asking the opposition to learn something the government was about to obliterate. That speech might be the last time anyone in the assembly gets to mention ‘separation’, as accumulation takes its place.
The incumbent government has been heavily preoccupied with judicial reform since it came into power. From out-of-place appointments to supra-constitutional benches, it has tried it all. Judges subdued, courts inflated, lawyers threatened, justice delayed, letters leaked, benches broken. And yet, it took one more amendment to finally break the spine of Pakistan’s judiciary.
The 27th Amendment arrives dressed as reform – until you read the fine print. It puts up a new apex court that owes no allegiance to 78 years of constitutional history: no binding precedent, no institutional memory, no obligation to heed anything the Supreme Court of Pakistan has ever said. The Supreme Court will remain, yes – but hollowed out, a museum exhibit in black robes.
The Federal Constitutional Court (FCC) will have the power to revisit, reinterpret, and overrule the very foundations of our constitutional law. Maulvi Tamizuddin Khan, Nusrat Bhutto, Khan Asfandyar Wali, Panama – all rendered irrelevant. Not because they were wrong, but because they were decided by the wrong court.
The next time a government is dismissed, a parliament dissolved or a constitutional amendment challenged, it won’t be the Supreme Court deciding. It’ll be a new bench, with no case law to guide it, no precedent to bind it, and every safeguard negotiable. The executive will notably call this ‘clarity’, but when the next constitutional crisis arrives (and it will), no one will remember why the last one mattered or how it was dealt with. Once precedent loses sanctity, law collapses into policy. Judgment becomes mood. Justice becomes preference.
When the Supreme Court, in District Bar Association, said parliament cannot alter the salient features of the constitution, it wasn’t flexing muscle but drawing a boundary. The 27th Amendment gleefully jumps that fence. Of course, this is on the heels of recent comments by the very court’s caretakers on parliamentary sovereignty (albeit later removed from the court’s website). This isn’t reform for the government; it is really convenience. Why live with 78 years of judicial resistance when you can simply erase it?
To put a cherry on top, the first chief justice of the FCC will be handpicked by the executive – chosen from among sitting Supreme Court judges. Seniority, continuity, independence: all tossed aside. The new court will be built on the ruins of the old, staffed by the preferred. Apparently, reform begins with obedience.
And it doesn’t stop there. The amendment is so proudly person-specific that it retains the current chief justice’s honorary title and expands the immunity and authority of a few select offices. In a democracy, laws are supposed to outlive individuals. In this one, they are written for them. MNA Naz Baloch even reminded the House that ZulfiKar Ali Bhutto “gifted democracy to Pakistan” and that his party would never dismantle it through an amendment, even as they cheered the most undemocratic clause in living memory. A state may survive bad politics; but it cannot survive selective constitutionalism.
Then there’s the architectural absurdity: the amendment has effectively introduced bicameralism into the judiciary, a concept alien to our constitution. By insisting on “equal provincial representation” in the FCC and placing it above the Supreme Court, the government has made it the Senate of courts – an upper house of justice that answers to no precedent and owes loyalty to no tradition. Unlike, however, the Senate, which still remains accountable to the lower house and may not pass laws without its consent, the FCC is an invention that will haunt the country for generations.
Let us not forget the burden folly. The amendment ensures that every matter “involving interpretation of the constitution” will go to the FCC. Almost every case that reaches the Supreme Court begins with an argument over jurisdiction – and so, by design, most will now land before the FCC. A ‘specialist’ court in name; a shadow Supreme Court in practice. We are told this will “reduce the Supreme Court’s workload”. That’s like reducing traffic by demolishing the road.
If workload were the issue, jurisdiction could have been limited to constitutional interpretation, leaving civil and criminal matters to end at the high courts with the high court’s divisional bench being the highest appellate fora for all matters non-constitutional. But as is now visible, this was never about workload.
We expanded benches, introduced case management, created commissions and registrars – yet the backlog persisted. Perhaps the problem isn’t the number of judges, but the number of governments that can’t stand judgment.
Every ‘reform’ somehow makes the judiciary less independent. The executive calls it restructuring; history will call it disembowelment. We are creating a second Supreme Court because the first one dared to act like one. It took 78 years to reach a point where courts could even pretend to hold the executive accountable. Now, that progress will be undone in a single vote – aided, ironically, by the very institution being gutted.
The FCC may sound like a technical adjustment but it’s a constitutional bypass surgery, rerouting the lifeblood of judicial power straight into the hands of the executive.
No amendment to the constitution – or, more accurately, no overhaul – has ever managed to destroy one branch of the state while creating another. This one does both beautifully. The prime minister expects applause for refusing immunity, while the rest of the country wonders why anyone needed it in the first place.
If justice were truly the aim, the constitution would already guarantee healthcare, disability support and housing as fundamental rights. One once thought the intent was correct but misplaced. Now, it appears the intent is as absent as the promise of reform itself.
For months, I intended to use the line, “for in the end, it is justice that should reign supreme, no matter where the gavel falls”, but I now concede that the gavel may no longer fall; it may rather dance to the rhythm of its puppeteers.
The writer is a lawyer.
