A contentious amendment
THE cat is indeed out of the bag. Speculation about the 27th amendment had been in the air for the past several months. Now a statement on social media by PPP chairman Bilawal Bhutto-Zardari has revealed the broad framework of the proposed amendment in the Constitution. The proposal envisages wide-ranging changes in the Constitution and a part of it is related to further curtailing the independence of the judiciary and ending protection for the provincial share under the National Finance Commission.
But perhaps the most curious provision in the proposal is the alteration in Article 243 that deals with the appointment of the chiefs of the armed forces and some other matters related to the service structure. No details are available about the amendments except for some broad outlines that were reportedly discussed in a meeting between the prime minister and PPP leaders.
The secrecy surrounding the whole exercise, which appears to have been going on for several months behind closed doors, has raised concerns. Lawmakers, even cabinet ministers, appear to be completely in the dark about such an important amendment that has to go through parliament. There seems to be some truth in the speculation that the draft has come from somewhere else — as in the case of the 26th Amendment, which was bulldozed through parliament last year. Such is the distressing reality of hybrid rule. Parliament and the cabinet seem to have become irrelevant even for such a critical constitutional matter related to the country’s political power structure and the federation. There is also the question about the objective behind such sweeping changes in the Constitution.
It is true that a constitution is not a sacred document that cannot be altered as demanded by changing circumstances and the challenges confronting the country and federation. But any change which comes into conflict with the basic structure of the Constitution, a document which gives people their fundamental rights and maintains a balance of power among the state institutions, could lead to authoritarianism, with serious consequences for the unity of the federation.
The proposed amendment is described by some as an expansion of the 26th Amendment.
More importantly, only democratically elected representatives have the right to amend the Constitution in order to strengthen democracy and the federation. But the surreptitious manner in which the amendments are being prepared does not fulfil those basic democratic requirements. There is a need for an extensive debate both at the public level and in parliament on the proposed amendment before it is adopted. That is what happens in a democracy.
But there is no indication that the government, with its doubtful public mandate, is willing to go through this essential democratic process. Then there is also the question of how much say the coalition government has in drafting the proposed amendment as even some members of the cabinet privately express their helplessness in such matters. But they cannot completely absolve themselves of responsibility. They are equally culpable for weakening the democratic process in the country. The way the 26th Amendment was pushed through in parliament is a testimony of their collaboration in mutilating the Constitution.
Since the full text of the proposed amendment is not available, one can only examine the points highlighted by the PPP chairman, and later confirmed by the minister of state for law, on social media. One of the most important clauses in the proposal is the establishment of a separate constitutional court.
The proposed amendment is described by some jurists as an expansion of the controversial 26th Amendment and is part of the effort, it seems, to make the top judiciary completely subservient to the executive. Interestingly, this proposal has been floated when the petition challenging the legality of the 26th Amendment is being heard by the constitutional bench — itself the product of controversial legislation — of the Supreme Court.
A separate constitutional court would take away whatever remains of the power of the apex court over constitutional matters. That will be a huge blow to the independence of the judiciary. The proposed constitutional court is quite likely to be packed by handpicked judges, as we have seen in the case of the appointment of the judges to the constitutional bench by the Judicial Commission, which is dominated by members affiliated with the ruling coalition.
But perhaps the most contentious proposal is the provision of the transfer of high court judges to other regional courts. That will reduce the position of high court judges to lower court judges or a government employee. We have already seen how judges from other courts are brought to the Islamabad High Court and one who was lower on the seniority list in his court of origin was elevated to chief justice. The proposed amendment would allow the executive to punish judges not ready to give in to pressure exerted by the executive and the powerful establishment.
Justifying the proposed amendment on the appointment and extension in the services of the military chiefs, the minister of state for law reportedly indicated that it was necessary because it is for the first time since the promulgation of the 1973 Constitution that an officer had been elevated to the position of field marshal. No details were given about any further powers for the army chief as was being speculated on social media.
Proposed changes in the allocation of financial resources to the provinces under the National Finance Commission will ignite a highly explosive issue. A statement reportedly from a PPP official in Sindh rejected any such proposal. It is also questionable if the other provinces would accept the change. A broad consensus among the federating units is needed before the amendment is presented before parliament.
With the ruling coalition now having more than a two-thirds majority in both Houses after the Supreme Court ruling denying the PTI the reserved seats and the latest disqualification of a number of opposition lawmakers, it will not be difficult for the government to bulldoze yet another amendment. But such a move would be at the cost of the country’s future even as a nominally democratic nation.
The writer is an author and journalist.
X: @hidhussain
Published in Dawn, November 5th, 2025