This is the way the world ends

Not with a bang but with a whimper — (The Hollow Men) T.S. Eliot

Newspaper editors, at times, require writers to cobble up a short article on famous persons, in the throes of death, that can be used as an obituary when they cease to be. Institutions on the brink of extinction merit similar consideration.

This is not an essay on the impact of the 27th constitutional amendment bill on the judiciary. It is not even a comment. It is an obituary of the Supreme Court (SC) and the high courts that we once knew. If you have known a person or institution well and for long, such a piece is also not easy to write. Expression requires words. The bill has left us at a loss for words. Trying as it is, one must nevertheless soldier on.

One must begin with the high courts. Central to the authority of these highest provincial courts is their jurisdiction to check executive and legislative overreach.

Any aggrieved citizen can call an action of state in question by invoking Article 199 of the Constitution. That jurisdiction will survive. Such cases will, however, be heard now by the constitutional benches of the high courts.

In the past, the chief justice of the res­pective high court assigned these cases.

With the 26th Amendment, this authority has been transferred to the Judicial Commission of Pakistan (JCP), where the chief justice of Pakistan and other judges are in a minority.

The state whose actions are under scrutiny in such matters is ascendant.

Every experienced lawyer knows that a party with the authority to control the assignment of cases can also control outcomes.

Judges, like the rest of us, have their pre­ferences and prejudices. Baser moti­v­es are not needed. When the desired outcome of a case is matched with the inclinations of a judge, success is almost assured.

Any miscalculation in assessing human predilections is ringfenced by keeping the sword of transfer in full view of any judge, who may entertain adventurous ideas.

The president of the country will have the authority to transfer a judge of one high court to another. They can be exiled from a city or an area, where they have spent a lifetime, to another high court in another province.

They will have no say in the matter. To the contrary, a judge, who does not accept such a transfer will be deemed retired.

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The powerful dissent of SC’s Justice Naeem Akhtar Afghan in the Islamabad High Court judges’ case ought to have made us pause and reflect on the deleterious consequences of such transfers for judicial independence.

Instead, we have swung full throttled in the opposite direction. Even the judges of the SC will no longer be immune from such actions.

The judges of the Federal Constitu­tional Court (FCC) will be appointed from lawyers or from judges of the SC.

Any SC judge, who refuses to accept this appointment, will be deemed retired.

Do not be surprised if you soon witness a purge of “undesirable” SC judges.

In matters of transfer, the SC will at least be at par with the high courts. In other respects, it will fare worse.

It will not be left with any authority to hear any appeals in constitutional cases from the high courts.

That authority will belong to the FCC. So will the jurisdiction to decide disputes between provinces, or between one or more provinces and the Federation, to adjudicate petitions for the enforcement of fundamental rights, and to advise the president on questions of constitutional law. All such matters presently pending in the SC will stand transferred to the FCC.

Appeals, under various statutes, will be diverted to the FCC by making an amendment to them.

It is apparent that the Elections Act, 2017 and other such statutes will soon be modified to effect this change.

All election disputes will soon fall into the FCC’s lap. If a substantial question of constitutional law, by some quirk of fate or lawyer’s ingenuity gets raised in any case before any court, the FCC will have the authority to sweep all such matters into its domain.

With one stroke of pen, the almost century old law of precedent will be erased. The FCC will not be bound by a judgment of the SC. All courts, including the SC, will be bound by the judgement of the FCC. That settles any lingering doubt about which of the two courts is higher.

Where does this leave the SC? It will not be the highest court in the land anymore. It will be restricted to hearing appeals in civil and criminal matters just like the district and sessions courts.

Nothing of any consequence on the national and constitutional plane will remain in its domain.

For all effects and purposes, it will be reduced to the ‘Supreme District and Sessions Court’.

What General Ziaul Haq may have dreamt of, and what General Pervez Musharraf could not achieve, will soon be an accomplished fact.

This amendment, when carried, will give a lie to all those who have protested the ineffectiveness of our “elected” representatives and the inability of our parliament to change things. As demolition jobs go, this one is inimitable.

For nothing now can ever come to any good — (Funeral Blues) W.H. Auden

The writer is a distinguished lawyer

Published in Dawn, November 9th, 2025