The deliberations surrounding the 26th Amendment have not yet culminated, and its far-reaching repercussions on the judiciary and beyond have not been fully felt. Yet, another contentious constitutional 27th Amendment has been passed hastily with no public consensus or political consultations. Most worryingly, the primary target is once again the judiciary. The 27th Amendment seems to be the final nail in the judiciary’s coffin.
The proposed 27th Amendment has triggered an intense constitutional, political, and judicial debate in the country, with grave concerns about the curtailment of judicial independence and the erosion of the doctrine of separation of powers enshrined in the 1973 Constitution. The proposed 27th Amendment seeks to redesign and reconfigure the country’s political, judicial, and constitutional framework. Such politically motivated constitutional amendments would cast sweeping repercussions on the already fragile democratic health of the country.
The proposed changes include the establishment of a federal constitutional court by reducing the Supreme Court’s authority to merely dealing with appellate civil and criminal cases; the restoration of executive magistrates to embolden executive clout; the transfer of high court judges, by the president with the recommendation of the Judicial Commission of Pakistan, from one province to another without their consent; the alteration of Article 243 by establishing a Chief of Defence Forces and terminating the Joint Chiefs of Staff Committee; and the granting of five-star armed officers, including the president, lifetime rank, privileges, and immunity.
Conferring lifetime immunity on five-star officers and the president reveals how a certain class of people is above the law and evades accountability through constitutionally engineered amendments. Doesn’t this immunity clause represent the concept of “The King Can Do No Wrong”? It is outright contrary to the principle of justice and the tenets of accountability. Everyone should be accountable to the law and equal before the law. Amendments are meant to serve the public interest rather than perpetuate the monopoly of a certain elite class.
Most shockingly, most MNAs did not even know the complete details of the draft before it was tabled
The controversial 27th Amendment is being viewed as a brazen attempt to centralise power, weaken constitutionalism, strip judicial independence, undermine civilian rule, and cripple the doctrine of the trichotomy of powers of the state. The rushed passage of amendments without cohesive democratic consultations and all-encompassing constitutional debates exposes the nefarious designs behind this amendment, and it showcases how the current amendment process is lacking constitutional transparency and political legitimacy.
The question arises why the 26th and 27th Amendments have been rushed through Parliament without following formal procedure, such as taking the opposition and public on board and conducting in-depth discussion on every angle of the amendment. Most shockingly, most MNAs did not even know the complete details of the draft before it was tabled. The overall process is highly hasty, vague, and undemocratic, which unveils the growing insecurity of the incumbent regime.
Sadly, the current regime is no longer hybrid. It is officially an authoritarian regime which is exhibiting outright totalitarian tendencies. Parliament has been reduced to a mere rubber stamp. The constitution is being attacked perpetually. Democracy has become a sham and a mockery. The doctrine of separation of powers has been rendered ineffective. The line between a democratic setup and a dictatorial regime has been largely blurred under this incumbent government.
The legitimacy and credibility of the current government are being questioned as it continues to rewrite the constitution, restructure the judicial structure, and reshape the political framework of the country. The Pakistan People’s Party brags about being the champion of democracy, civilian rule, and independence of the judiciary, but its historical legacy for democracy and constitutionalism has been tarnished by backing recent constitutional amendments. The party is on the wrong side of history.
The deepening judicial silence is quite puzzling and disturbing. The absence of strong opposition on behalf of lawyers and judges is tantamount to equal complicity in the erosion of judicial independence. Law students, advocates, judges, activists, and citizens must raise their voices to defend the judiciary, or else surrender will be the final nail in the judiciary’s coffin. Safeguarding the judiciary is equal to safeguarding the constitution, democracy, and civilian supremacy.
Frequent attempts to make the judiciary subservient to the executive would harm the doctrine of separation of powers. Every organ of the state should operate within its own ambit without wielding clout over one another. Most importantly, the judiciary should be independent and should function smoothly, as Winston Churchill brilliantly quoted: “Are the courts functioning? If the courts are working, nothing can go wrong.”