Syllabus: Comparison of the Indian constitutional scheme with that of other countries.
Overview
- Pakistan passed the 27th Constitutional Amendment in November 2024, creating a Federal Constitutional Court (FCC).
- The amendment significantly curtails the Supreme Court’s original jurisdiction, reducing judicial independence.
- Several judges have resigned or protested, signalling institutional distress.
Key Implications of the 27th Amendment
- Creation of the FCC
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- The FCC assumes responsibility for constitutional interpretation and federal–provincial matters.
- The Supreme Court loses its original jurisdiction over fundamental rights and constitutional cases.
- Past landmark cases like the Panama Papers and Memogate would now fall outside its purview.
- Transfer of Judges by the Executive
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- The amendment allows the executive to transfer judges without consent, despite procedural safeguards.
- Critics fear this enables removal of judges who challenge government positions.
- Rapid FCC appointments and space allocation in Islamabad indicate a push to control constitutional adjudication.
- Judicial Division
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- Some judges oppose the amendment, while others have joined the FCC.
- A divided judiciary weakens institutional strength and public legitimacy.
Broader Concerns
- The amendment reverses gains from the 18th Amendment (2010), which depoliticised judicial appointments via the Judicial Commission of Pakistan (JCP).
- The 27th amendment effectively nullifies JCP autonomy.
Why Is the Government Acting Now?
- Official reasoning cites reducing caseload, but most delays occur in lower courts, not the Supreme Court.
- Real motive appears to be limiting the Supreme Court to a Court of Appeals, restricting its oversight.
Background: The 26th Amendment
- Passed in 2024, it altered the JCP composition, adding more executive members.
- It empowered the JCP to appoint constitutional benches, reducing the Chief Justice’s authority.
- Marked the beginning of systematic judicial weakening.
Historical Context
- Pakistan’s judiciary has long faced pressure from both the military and political executives.
- From the “Doctrine of Necessity” to clashes involving Iftikhar Chaudhry, confrontation is recurring.
- Recent intimidation claims by Islamabad High Court judges heightened tensions.
Way Forward
- The FCC has begun functioning despite strong civil society opposition.
- A divided judiciary and unified ruling coalition favour executive control.
- Given Pakistan’s governance challenges, an independent judiciary remains essential, yet the 27th amendment threatens that foundation.
