The Arguments advanced on, under challenge, the 26th Amendment to the Constitution of Pakistan, 1973:
Senior Advocates of Supreme Court of Pakistan focus first on who may hear the challenge: full court vs. constitutional bench; They assert that the independence of the judiciary is jeopardised by the changes introduced by the amendment — including to appointment processes, performance evaluation, composition of judicial bodies; They raise concerns about procedural compliance in the passage of the amendment (e.g., whether the required two-thirds in each House, free exercise of vote etc); They argue that certain provisions of the amendment are inconsistent with fundamental rights, the basic structure, and key constitutional guarantees (e.g., Articles 175/175A, 184 etc) and seek declarations of repugnance or void-ness; They claim that the constitutional change not only affects specific clauses but the very architecture of judicial power and review in Pakistan — hence the need for high legitimacy in hearing the challenge.
Case Subject: Election-National Assembly/Reserved Seats case decisoin; C.R.P.312/2024; Supreme Court of Pakistan: 2025 SCP 360.
Ruling on the rejection of review petitions in the case regarding reserved seats known as Sunni Ittehad Council v. Election Commission of Pakistan.
Case Subject: Military Courts decision.
In May 2025, Supreme Court of Pakistan overruled its October 2023 ruling, permitting civilians to face trials in military courts for particular offenses tied to national security.
Case Subject: Approving judicial transfers of Judges of Superior Courts:
The Constitutional Bench of Supreme Court of Pakistan sanctioned the transfer of judicial officers.
PLD 2024 Supreme Court 978
The Supreme Court ordered the federal government to create the Climate Change Authority within 14 days (and to initiate actions for the establishment of the Climate Fund).
PLD 1998 Supreme Court 161
The judgment held that issues affecting the institutional framework of the judicial system (rather than purely individual grievances) can constitute a “question of public importance” under Article 184(3) of the Constitution, allowing the Supreme Court to exercise its original jurisdiction.
The judgment further reinforces that the judiciary cannot be treated as merely another branch of government without institutional safeguards; the Constitution envisages a separated and independent judiciary for effective access to justice. Moreover, it emphasized that for judicial independence to be meaningful, certain procedural safeguards must be in place: the procedure for appointment of high court and supreme court judges, their tenure and other institutional protections must adhere to constitutional norms.
PLD 2015 Supreme Court 401
A majority of the Court held that the Supreme Court does have power to review the substantive validity of constitutional amendments (i.e., not merely procedural aspects). Moreover, the Court affirmed that a constitutional amendment could be struck down if it repeals, alters or abrogates the “salient features” of the Constitution.
Key Points of the 27th Amendment 1. Restructuring of Military Command o It amends Article 243, creating a new post: Chief of Defence Forces (CDF). The Army Chief will also serve as CDF, giving him constitutional authority over all three services (Army, Navy, Air Force). o As a result, the post of Chairman Joint Chiefs of Staff Committee (CJCSC) is abolished. o Five-star ranks (e.g., Field Marshal) are given a lifetime constitutional status: they can “retain rank, privileges, and remain in uniform for life.” o These top officers (five-star) are granted lifetime immunity from criminal prosecution. o It also creates a Commander of the National Strategic Command, responsible for nuclear/strategic assets; this post is tied to the army via CDF. 2. Judicial Reform / New Court Structure o Establishment of a Federal Constitutional Court (FCC) to handle constitutional cases. o Judges of the FCC: equal representation from all provinces plus Islamabad. o The Chief Justice of the FCC would serve a fixed 3-year term. o Retirement age for FCC judges is set at 68 years, higher than for SC judges (65). o Changes to judge transfers: Under Article 200, a judge can be transferred between High Courts without needing the judge’s or the Chief Justice’s consent. o If a judge refuses a transfer, they may be forced to retire. 3. Presidential and Military Immunity o The President is granted lifetime immunity from criminal proceedings, similar to the top military officers. o This means no court can initiate or continue criminal proceedings against them. 4. Federal-Provincial / Fiscal Changes o Possible reduction of the provinces’ share in the National Finance Commission (NFC) award, which determines fiscal distribution. o Proposal to shift key sectors (education, population welfare) back to federal control, which were devolved to provinces under earlier amendments. o There are stricter eligibility clauses: e.g., barring dual nationals (or persons with foreign citizenship) from certain high-level offices (judges, possibly others). 5. Judicial Commission / Appointment Power Shifts o The Judicial Commission of Pakistan (JCP) gets more power: it can recommend transfers or appointments more directly, and the President’s role is strengthened in these processes. o More executive influence over the judiciary is built in, raising concerns of politicization. ________________________________________ Potential Effects (Implications) These changes could have far-reaching effects on Pakistan’s politics, governance, civil-military balance, and judicial independence. Here are possible consequences, both positive (as argued by supporters) and negative (as warned by critics): Positive / Intended Effects (According to Supporters) • Stronger & More Unified Military Command o By having a CDF overseeing all services, the military chain-of-command might become more streamlined and efficient. o This could improve coordination, especially in national security and strategic decision-making. • Institutional Modernization o The creation of a dedicated Federal Constitutional Court could specialize constitutional adjudication, possibly reducing the burden on the Supreme Court and speeding up constitutional disputes. o Fixed and clear terms for FCC judges may bring stability and clarity to the judicial system. • Stability and Continuity o Lifetime immunity for top military leaders (and the president) could, in theory, provide them freedom to operate without fear of legal retribution, enabling more consistent long-term strategic decisions (though this is contentious). • Centralization for Efficiency o Bringing key sectors like education and population welfare under federal control might be argued to ensure uniform standards and better national-level planning. Risks / Criticisms / Negative Effects • Erosion of Democratic Checks & Balances o Critics argue this is a major power grab: by granting immunity and increasing military influence, civilian oversight could be weakened severely. o The abolition of CJCSC and consolidation under one powerful CDF (Army Chief) might tilt civil-military relations heavily in favor of the military. • Threat to Judicial Independence o The new FCC might be more politically controlled: appointment and transfer powers could skew in favor of executive influence, undermining impartial justice. o Forcing judges to transfer or retire may discourage dissenting or independent judges, weakening judicial protection of rights. o With the Supreme Court’s constitutional jurisdiction curtailed, its ability to check the executive may diminish. • Centralization vs. Provincial Autonomy o Reducing provinces’ share in NFC funds could strain provincial finances, potentially undermining federalism and provincial development. o Shifting education and welfare back to the center may erode devolution gains made under earlier amendments (like the 18th). Critics fear this reduces provincial self-governance. • Accountability & Impunity o Lifetime immunity for top military officers and the president could lead to impunity, with limited legal recourse for misconduct. o The high threshold (two-thirds in Parliament) for removing five-star officers means they may remain safe from removal, impacting accountability. • Institutional Capture o Some analysts argue the amendment is not just reform but a restructuring to centralize power in the hands of a few, potentially undermining democratic norms. o There are concerns that the Judicial Commission of Pakistan will be dominated by the executive, reducing the judiciary’s independence. • Public Trust & Legitimacy o Swift passage, according to critics, shows lack of meaningful public debate. o Resignations by some senior judges indicate deep institutional unease. o For citizens, weaker judicial review could mean fewer checks on government overreach, affecting rights, rule of law, and democratic accountability. • Risk to Civil Liberties o When the judiciary is less independent, civil liberties and fundamental rights are at higher risk, because courts cannot effectively check abuses by powerful actors. (This is a broader risk, raised by legal experts.) o The concentration of power could also undermine the protection of minorities, as there may be fewer institutional safeguards. ________________________________________ Big Picture / Strategic Implications • Civil-Military Balance: The 27th Amendment significantly strengthens the constitutional role of the military in Pakistan’s governance structure. This could lead to a more entrenched military influence in politics. • Constitutional Precedent: By embedding lifetime immunities and restructuring the judiciary, this amendment may set a long-term precedent, making reversal difficult without another major constitutional change. • Democratic Backslide? Many see this as a regression: the 1973 Constitution was built on separation of powers and civilian supremacy; this amendment arguably undermines those foundations. • Governance vs. Accountability Trade-off: While proponents might argue for efficiency and stability, the trade-off seems to be in accountability, legal checks, and independent institutions.
