“AT last he beat his music out./ There lives more faith in honest doubt./ Believe me, than in half the creeds,” wrote Alfred Lord Tennyson in his famous elegy In Memoriam. The 27th Amendment runs a dagger through the Constitution, and many lawyers, like myself, who have no political affiliation, doubt its benevolence.

The constitution of a country is its “highest positive norm” explains Hans Kelsen in General Theory of Law and State, and derives its normativity from a hypothetical ‘Grundnorm’, which is posited above it. The entire function of the Grundnorm, writes Kelsen, “is to confer law-creating power on the acts of the first legislator and on all the other acts based on the first act”.

Kelsen elaborates on the ‘doctrine of revolutionary legality’ in Pure Theory of Law. “The norms of a legal order are valid until their validity is terminated according to the rules of this legal order”, he belabours. A legal revolution is said to occur when “the valid constitution has been changed or replaced in a manner not prescribed by the constitution valid until then”.

Those supporting the amendment argue that since the amendments have been passed in accordance with Articles 238 and 239 of the Constitution, and the requisite two-thirds majority of parliamentarians voted in favour, there should be no qualms. Here arises the debate between two schools of thought — proceduralism and substantivism, with the former only willing to look into the procedure, and the latter also acquiescing to evaluate the amendments’ substance.

The amendment came against a dubious backdrop.

The 27th Amendment strikes at the heart of the Constitution, the separation of powers and the rule of law. It strips the Supreme Court of its supreme status, all but in name, and assigns power to hear constitutional cases to a newly created Federal Constitutional Court by placing it at the helm. It endows the executive with the power to immediately pack the FCC. It undermines the security of judicial tenure and provides for transfer as a means to punish non-compliant high court judges. It introduces a mechanism for compulsory retirement of judges, and allows the executive to circuitously brandish this power with great nuisance.

According to Yaniv Roznai, a proponent of substantivism, in Unconstitutional Constitutional Amendments, courts in a democratic society must step in “first, [when] the work of the amendment authority contradicts basic principles of the democratic system; second, the nature of this failure is such that its correction cannot be made through the political institution itself, but rather through an independent agent that is detached from the ordinary representative political system”. According to Roznai, “a revolutionary change” in the sense that Kelsen described “can also occur through legal means”.

This argument, known as ‘the basic structure doctrine’, prevailed with the Indian supreme court initially in ‘Kesavananda Bharati v. State of Kerala’ (1973) and later in Minerva Mills v. Union of India (1980) when it struck down a constitutional amendment that sought to render ‘fundamental rights’ subservient to the ‘directive principles of state policy’. Chief justice Yeshwant Chandrachud wrote that the amendment, if allowed to stand, would deny India “the heaven of freedom into which Tagore wanted his country to awake and [thrust it towards] the abyss of unrestrained power”.

Benin’s national assembly amended Article 80 of the constitution, thereby extending its own parliamentary term from four to five years. A month later, the Beninese constitutional court declared the amendment to be un­constitutional. The Turkish, Bra­zi­lian and Czech constitutional courts have also invalidated a number of constitutional amendments.

Proceduralists ar­gue that even if the amendments sail tho­ugh, they can be challenged before the FCC, without realising that the very coming into existence of the FCC is a testament of not just the success, but the invitation extended to the ‘legal revolution’ vis-à-vis a change in the Grundnorm, akin to a black hole’s event horizon from where there is no return. The prospects of a court ruling on its jurisdiction is one thing, on its very existence and legality quite another.

The 27th Amendment came against the backdrop of shady general elections, five judges of the Islamabad High Court complaining to the Supreme Court of interference in their judicial work, a former prime minister being behind bars with over 100 cases against him, a national history of civilian supremacy being compromised and the judicature being manipulated to serve vested interests.

To avoid taking into account all of the above, and find comfort in a strictly proceduralist view is analogous to the ridicule of the apocryphal joke ‘other than that, Mrs Lincoln, how was the play?’

The writer is a practising barrister.
asadulmulk@legalparameter.com

Published in Dawn, November 18th, 2025