Legal experts question rationale behind new legislation plan
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• Former law officer says nation must brace itself for long struggle against ‘praetorian judges’
• Ruling elite has inflicted unprecedented harm on independence of judiciary, Akram Sheikh argues
ISLAMABAD: As speculations swirl around the controversial 27th Constitutional Amendment, legal experts have questioned the rationale behind such constitutional tweaks, especially after the previous 26th Amendment that had effectively brought the superior judiciary under the executive’s control.
The “final draft” of this Amendment has hitherto been kept under wraps, but its contours were recently shared by PPP chief Bilawal Bhutto-Zardari when he said a prime minister-led delegation had sought the PPP’s support for its passage. In a statement, he said the proposal included setting up constitutional courts, restoring executive magistrates, matters related to the transfer of judges, ending the protection of provincial shares under the National Finance Commission (NFC) Award, and amending Article 243, which pertains to the command of the armed forces.
While some see it as a continuation of the 26th Amendment, a senior counsel questioned the reason behind such a move at a time when the government had not lost even a single constitutional case in the superior court.
“Not a single case pertaining to constitutional interpretations, be it the reserved seat case, judges transfer matter, military courts case, or matters relating to taxes, has ever been lost by the federal government after the passage of the 26th Amendment,” remarked the counsel on condition of anonymity. Then what is the rationale behind stirring up the controversy at this juncture, he wondered.
Except for enhancing the retirement age limit from the existing 65 years, that too of ‘a few friends’, what the proposed constitutional court will be doing when the federal government has not lost a single major case from the Constitutional Bench of the Supreme Court.
The need to establish the Federal Constitutional Court is understandable, had Justice Syed Mansoor Ali Shah or Justice Munib Akhtar also been included in the CB. But when these judges are not part of the bench, then what is the purpose of establishing this court, he asked.
About speculations that the executive magistracy may be restored through the proposed Amendment, the counsel conceded that the judicial magistracy had failed to meet the expectations since it was common knowledge that they never resisted the remand of an accused in important cases. The reverting back to the executive magistracy will effectively be used to control the streets, he said.
Regarding the transfer of judges, he said that when the CB through a majority judgement has already empowered the government to transfer any high court to another high court, what more does the government intend to achieve?
Inevitable continuation
Meanwhile, former additional attorney general Tariq Mehmood Khokhar was of the view that the proposed 27th Amendment was the inevitable continuation of the 26th Amendment.
The executive wants to tighten its grip on the judiciary: granting unfettered power to transfer high court judges, a federal constitutional court as the ultimate guardian of the Constitution with its head chairing the Judicial Commission of Pakistan (JCP) and the Supreme Judicial Council (SJC), thus playing a pivotal role in the appointment and ouster of judges and reducing the present Chief Justice of Pakistan (CJP) to an ineffectual position, he said.
The nation must brace itself for a long struggle against praetorian judges, the rollback of the independent judiciary, and the weight of the executive on the scales of justice, he feared.
According to former Supreme Court Bar Association (SCBA) president Muhammad Akram Sheikh, the result of the general election on Feb 8, 2024, stunned the electors, monitoring agencies and the media beyond reproach.
The ruling elite then impose ‘PCO’ by giving an oath to willing judges while relieving others and thus nailing down the entire superior court. The regime inflicted unprecedented harm on the most paramount state organ of an independent judiciary, Akram Sheikh regretted, adding that the ruling elite decided to punish the Supreme Court in a manner not ever thought about by the respective military regimes.
Former Senate chairman Raza Rabbani, considered to be one of the architects of the 18th Amendment, feared that in the brittle political situation prevalent in the country, the proposed tweaks would cast a shadow over the federation that may also help regain an extra nationalist narrative.
The proposed Amendment that deals with the question of bringing changes to the removal of protection for the share of provinces in the divisible pool through the National Finance Commission (NFC), as well as restoring the devolved ministries back to the federal government, amounts to the rollback of the 18th Amendment.
In Jan 2015, Mr Rabbani regretted after a vote on the 21st Amendment, which provided for military courts to try terrorists, stating he was ashamed of voting for the bill, although he did so in line with his party’s discipline.
Published in Dawn, November 7th, 2025
