Pakistan’s Constitution has been
amended many times since 1973 to respond to political, social, and
administrative needs. Two of the important recent amendments are the 26th
and 27th Constitutional Amendments, both passed to improve governance and address long-standing structural issues. However,
both amendments also generated intense debate, especially the 27th Amendment,
which introduced significant judicial reforms that deeply affected the balance
of power between Pakistan’s institutions.
This article explains the advantages and disadvantages of both amendments, which provide a clear understanding of their impact on Pakistan’s constitutional framework.
1. The 26th Constitutional Amendment – Overview
The 26th Constitutional Amendment
was passed mainly to adjust the representation of the merged tribal
districts (formerly FATA) in the Khyber Pakhtunkhwa Assembly. After
the 25th Amendment merged FATA into KP, it became necessary to update the
Constitution so that the people of these regions could have proper
representation in the provincial legislature.
Key
Features of the 26th Amendment
- Increased the number of provincial assembly seats for
the newly merged tribal districts.
- Ensured more political participation and democratic
representation for residents of these districts.
- Allowed better integration of the region into
Pakistan’s mainstream political, legal, and administrative systems.
Advantages of the 26th Constitutional Amendment
1.
Better Democratic Representation
The amendment gave the people of
ex-FATA the right to elect more representatives to the KP Assembly. This
strengthened democracy and ensured that the voices of historically neglected
communities could finally reach the provincial government.
2.
Integration Into Mainstream Governance
After decades of separate legal and
administrative systems (such as the Frontier Crimes Regulation), merging
ex-FATA into KP required constitutional adjustments. The 26th Amendment ensured
that the people of these areas fully became part of the province’s political
structure.
3.
Strengthening Provincial Decision-Making
By adding more elected members, the
KP Assembly became better positioned to address local issues such as
development projects, policing, education, health, and infrastructure
improvements in the merged districts.
4.
Correction of Long-Term Historical Inequality
Residents of FATA had suffered from
a lack of political participation for more than 70 years. The 26th Amendment
played an important role in correcting this historical imbalance.
Disadvantages of the 26th Constitutional Amendment
1.
Administrative and Financial Burden
Increasing the number of provincial
seats meant the government had to allocate more funds for salaries, offices,
development schemes, and administrative logistics.
2.
Political Competition and Tensions
The sudden expansion of seats
created strong electoral competition. Many experts felt that political parties
were not adequately prepared for this transition in the newly merged areas.
3.
Implementation Challenges
Although the amendment changed the
constitutional framework, practical challenges such as policing, judicial
reforms, and local government establishment remained significant obstacles.
4.
Limited Impact Without Development
Some critics argued that adjusting
assembly seats was not enough. Without rapid development and institutional
strengthening, political representation alone could not solve the region’s
deep-rooted problems.
2. The 27th Constitutional Amendment – Overview
The 27th Constitutional Amendment
introduced major reforms, particularly in Pakistan’s judicial structure. The
most notable change was the creation of the Federal Constitutional Court
(FCC), which took over many constitutional functions previously exercised
by the Supreme Court of Pakistan.
Other important features included:
- Changes in the appointment process of judges.
- Reforms in judicial bodies like the Judicial Commission
of Pakistan (JCP) and the Supreme Judicial Council (SJC).
- New accountability rules for top officials.
- Lifetime legal immunity for certain high-ranking
military officers.
Because of these wide-ranging
reforms, the amendment became one of the most debated constitutional changes in
Pakistan’s history.
Advantages of the 27th Constitutional Amendment
1.
A Separate Constitutional Court
Supporters argue that creating a
Federal Constitutional Court will:
- Reduce the burden on the Supreme Court.
- Speed up constitutional case decisions.
- Allow the Supreme Court to focus more on civil,
criminal, and appellate matters.
Many countries, such as Germany and
Turkey, already have separate constitutional courts for this purpose.
2.
Faster Case Disposal
Pakistan’s courts face heavy
backlogs. By distributing powers between the Supreme Court and FCC,
cases—especially constitutional challenges—may be decided more quickly.
3.
Modernization of Judicial Structure
The government argued that the
amendment modernizes the judicial system by:
- Updating judicial procedures,
- Reforming selection mechanisms, and
- Introducing new accountability standards.
4.
Clearer Division of Judicial Work
Having constitutional cases handled
by one specialized court and other cases dealt with by the Supreme Court can
help in:
- Reducing delays,
- Improving specialization, and
- Bringing more clarity to the judicial hierarchy.
5.
Strengthening Executive-Judicial Coordination
Supporters also claim that the
amendment increases coordination between branches of government, making reforms
more efficient.
Disadvantages of the 27th Constitutional Amendment
While some advantages exist, the
amendment also created serious concerns.
1.
Weakening the Supreme Court’s Authority
Many experts believe the amendment
reduces the Supreme Court’s traditional role as the highest guardian of the
Constitution. These powers now shift to the newly created Federal
Constitutional Court, which has no established institutional history.
2.
Executive Influence Over Judicial Appointments
One of the strongest criticisms is
that the amendment gives the executive branch significant control over the
appointment of the FCC judges, especially in its early years. Critics fear this
could:
- Politicize the judiciary,
- Reduce judicial independence, and
- Undermine checks and balances.
3.
Lifetime Legal Immunity
The amendment introduced lifetime
immunity for certain senior military officers. Critics argue that:
- It places some individuals above the law,
- Reduces accountability, and
- Weakens democratic oversight.
4.
Institutional Imbalance
Several scholars believe the
amendment disturbs the balance between the judiciary and the executive. By
shifting powers and restructuring judicial bodies, it may concentrate too much
power in the hands of the government.
5.
Lack of Clear Safeguards
While the amendment creates new institutions and reforms others, many rules, procedures, and criteria for appointments are not clearly defined. This creates uncertainty and room for potential misuse.
Scholarly Reaction and Legal Challenges (Integrated
Section)
The 27th Amendment generated strong
reactions from Pakistan’s legal and academic community. Many senior lawyers,
constitutional experts, retired judges, and even sitting Supreme Court judges
expressed serious concern.
1.
Concerns About Judicial Independence
Experts argue that reducing the
Supreme Court’s role weakens the judiciary as an institution. Lawyer Asad Rahim
Khan filed a petition in the Supreme Court, claiming the amendment violated the
Constitution’s basic principles, including the separation of powers and the
Court’s authority in constitutional interpretation.
2.
Executive Influence in Judge Appointments
Many scholars fear that giving the
executive significant control over the first appointments to the Federal
Constitutional Court will make the new court vulnerable to political influence.
The International Commission of Jurists (ICJ) also voiced concerns about
unclear selection criteria.
3.
Resignation of Two Supreme Court Judges
In a historic development, Justice
Mansoor Ali Shah and Justice Athar Minallah resigned in protest.
- Justice Shah called the amendment a “grave assault” on
the Constitution.
- Justice Minallah said the Constitution’s true spirit
was no longer intact.
These resignations deeply impacted
the legal community and showed the seriousness of the concerns.
4.
Petitions in the Supreme Court and High Courts
Multiple petitions were filed to
challenge the amendment. The Supreme Court petition asked the Court to strike
down several sections of the law, while another petition in the Lahore High
Court argued that shifting powers to the FCC and granting lifetime immunity
go against constitutional principles.
5.
Demand for a Full Court Hearing
Retired judges and senior lawyers
requested a full-bench hearing, arguing that the amendment affects the
entire constitutional structure, so only the full Supreme Court should decide
on its legitimacy.
6.
Overall Scholarly Assessment
Experts conclude that while the
amendment aims to reform the system, it:
- Weakens judicial independence,
- Strengthens the executive unnecessarily,
- Lacks detailed safeguards, and
- Introduces accountability gaps through immunity
clauses.
Conclusion
The 26th and 27th Constitutional
Amendments represent two very different approaches to constitutional reform
in Pakistan.
The 26th Amendment mainly
focuses on improving political representation for the newly merged districts,
strengthening democracy, and addressing long-standing inequalities. It is widely
seen as a positive step, though it comes with implementation challenges.
The 27th Amendment, however,
has sparked deep constitutional debate. While supporters believe it modernizes
judicial functions, critics warn that it may weaken the Supreme Court, reduce
judicial independence, increase executive influence, and create serious
accountability issues.
Together, these two amendments
highlight the ongoing struggle in Pakistan to balance democratic
representation, judicial independence, institutional stability, and political
accountability. How these amendments are interpreted and implemented in the
coming years will significantly shape Pakistan’s constitutional future.