By Daud Ehsan Dogar
27th Amendment to the Constitution of Pakistan has come rather a surprise due to the governments’ constant downplaying of the news circulating around it post 26th amendment last year. However, many analysts suspected that the 27th amendment was imminent and had been keeping a keen eye on this. The amendment has raised alarms across the legal and political fraternity who question the future of civilian rule and independence of judiciary in the country. A country like Pakistan, which has seen several decades of direct and indirect military rule and where democracy has always been questionable, the 27th amendment does not come as a surprise, according to some political commentators.
Critics see the 27th amendment as a stab in the heart of democratic values of the constitution as no civilian setup has been more favourable to the military apparatus than this government. A government who’s rise to power is already contested by internal and external election watchers, has been determined on protecting itself and its facilitators in the establishment. The 26th amendment that was enacted last year has been criticised for curtailing judicial independence by different segments of the society, has been supplemented with this new amendment. It is said that what was left undone last year is being completed now.
Let’s dive into what exactly is in this new constitutional amendment and how does it affect democracy and judicial independence in the country.
Amendments to Judiciary
A major alteration has been made in the judicial structure by amending Article 175, under which, the Supreme Court was the highest judicial court in the country. Now the status has been taken away from the Supreme Court and a superior court known as the Federal Constitutional Court (FCC) has been established. Supreme Courts’ original jurisdiction under Article 184 and advisory jurisdiction under Article 186 has been stripped away and handed over to the newly constituted FCC under this amendment. As only having appellate jurisdiction, the Supreme Court is not more than a fancy Sessions court.
Moreover, appointment of the newly constituted FCC has rather interesting element to it, whereby, under amended Article 175 (2)(a) the criteria set out for FCC judges is that anyone who “is or has been” a judge of the Supreme Court can be the judge of this Court. The “has been” element is interesting as it allows for retired judges to be placed at the highest level of the judicial apparatus, especially after the age of retirement for FCC judges has been raised to 68 years. It is quite expected to see some controversial faces to be sitting at the highest level of the judiciary once again. Thereby, it is evident that the impartiality of the Courts will come under question because the amendment allows for the executive branch’s meddling with the judicial branch.
The Amendment deeply affects the structure of judiciary, in particular the power of its highest court. The government’s argument for these amendments is that is to curtail the issue of backlog of cases, but, in reality, the purpose of the newly established court seems to be to curtail independent minded judges at the highest level of judiciary. As expected, resistance from within the judiciary has started to come as the senior puisne judge Justice Mansoor Ali Shah and Justice Athar Minallah have resigned from their posts. Justice Mansoor in his resignation calls the amendment “a grave assault on the Constitution”
The amendment has also altered the process of transfer of judges of the High Courts. Now the consent of the transferred judge is not required nor is the consultation of the Chief Justices of the relevant courts is required. The amendment has stripped the judges away from their right to refuse transfer as per law, as a no will result in the judge automatically retiring. Some critics see this as a strike on independent judiciary as the government can coerce judges to stay in their good books or risk facing transfers. Judiciary in Pakistan is slowly being transformed into bureaucracy.
Article 243
A major amendment in this 27th amendment is to Article 243, which deals with the Armed forces. The office of Chairman Joint Chiefs of Staff Committee (CJCSC) will stand abolished after 27th November 2025, and a new post of Commander of Defence Forces (CDF) is being established. This may be justified given current security threats, but abolishing the CJCSC raises questions about why strengthening the existing office was not considered. Or does the government concede that CJCSC’s office failed to provide better coordination between the forces?
According to the new amendments, the Chief of the Army Staff (COAS) will now concurrently be the CDF which will overlook all three branches of the military. Again, this may prove valuable but critics argue that it gives uncheckered powers to the office of the COAS and the army itself. The office of the CDF would be able to operate efficiently if it was a separate office held by a senior military officer, not necessarily from the army, like the previous CJCSC. The provision that the CDF must be from the army at all times undermines the role of other branches of the military.
Additionally, the rank of Field Marshal has been given legal cover. A rank that was considered honorary is now the talk of the town and potentially a sanctuary and the ultimate goal for all military officers especially the future COAS. The reason behind is simple. Field Marshal, Marshal of the Air Force and Marshal of the Fleet now enjoy the perks and privileges of the President of Pakistan, under the amended Article 248 in particular, and are never to be considered retired.
Lifetime Immunity for President
Article 248 has been modified as well, whereby the President of Pakistan now enjoys lifetime immunity from criminal proceedings and arrest. Critics from all segments of the society, whether it be the legal fraternity, religious clerics or the civil society. From a legal standpoint, the amended Article 248 is ultra vires to the Constitution of Pakistan. The preamble of the Constitution says that all laws are to be enacted in accordance with the Quran and Sunnah, and nowhere in Islamic teachings there is precedent of the head of State being immune from any proceedings. Mufti Taqi Usmani already opposed the concept of immunity for President during his tenure, but now has strongly criticised lifelong immunity as being “deeply shameful for the country.” Furthermore, under amended Article 248 is also against Article 25 of the Constitution which categorically calls for all citizens being equal. Thereby, by allowing President to be immune from arrest and criminal proceedings for his life, the legislature has enacted a law that contradicts one of the core principles of the constitution and democracy by placing the President above the law.
Adding to it, there is no precedent available among major contemporary democracies where the President enjoys lifetime immunity. So how can the government justify such an absurd act and what does it hold in store for the democracy of Pakistan? How can the government allow a military officer to enjoy the same perks and privileges as the President? Is a military officer equal to the President? There are many questions and few answers, but one thing seems clear that the future of democracy in the country is dark as the military establishment solidifies its control over the civilian apparatus with the help of civilian government. The so-called hybrid model of Pakistan seems to be aiding the military rather than promoting civilian rule. Quaid e Azam’s famous quote at Command and Staff College Quetta sits perfectly here and must be adhered with.
“Do not forget that the armed forces are the servants of the people. You do not make national policy; it is we, the civilians, who decide these issues and it is your duty to carry out these tasks with which you are entrusted.”
Mr. Daud Ehsan Dogar is LLB (Hon.) from University of London. He can be reached at sardardauddogar@gmail.com
