1. Context: Pakistan’s 27th Constitutional Amendment (PCA)
Pakistan’s legislature passed the 27th Constitutional Amendment (PCA) in mid-November last year, followed by presidential assent. Although formally presented as a measure to reorganise aspects of the military command structure, the amendment has wide-ranging constitutional implications.
At its core, the PCA restructures constitutional adjudication by transferring original jurisdiction over constitutional interpretation, fundamental rights, and federal–provincial disputes away from the Supreme Court to a newly created Federal Constitutional Court (FCC).
This change directly alters the balance of power among constitutional institutions. If unexamined, such restructuring risks reshaping governance through legal form rather than overt political action.
Constitutional amendments that reallocate judicial power are never merely procedural; they redefine how authority is constrained and exercised within the state.
2. Issue: Dilution of the Supreme Court’s Constitutional Role
The Supreme Court of Pakistan historically exercised original jurisdiction over politically and constitutionally sensitive cases. This authority enabled it to adjudicate landmark matters such as the Panama Papers case and the Memogate controversy.
By removing this jurisdiction, the PCA fragments constitutional adjudication and weakens the Supreme Court’s position as the final guardian of the Constitution. This institutional downgrading exposes the Court to marginalisation, particularly in an environment where executive influence is strong.
If the apex court’s constitutional role is diminished, constitutional accountability risks becoming dispersed and less effective.
Judicial authority derives not only from existence but from jurisdiction. Curtailing core jurisdiction erodes institutional stature and constitutional restraint.
3. Regional and Comparative Context: South Asia and the Global South
The PCA must be situated within a broader South Asian context marked by political instability, security challenges, and institutional strain. Across the Global South, constitutional institutions often operate under competing pressures of governance efficiency and security imperatives.
These pressures do not remain confined within national borders. The erosion of judicial independence or normalisation of executive dominance in one state generates regional precedents and cautionary signals.
For India, as the region’s largest constitutional democracy, developments in neighbouring constitutional systems hold indirect relevance for democratic norms and regional stability.
Constitutional backsliding rarely remains isolated; it shapes regional expectations about the limits of power and accountability.
4. Constitutional Principle at Stake: Rule of Law
The PCA unsettles the classical understanding of the rule of law, articulated by A.V. Dicey, which rests on the absence of arbitrary power, equality before law, and the centrality of independent courts.
In Dicey’s framework, courts act as institutional sentinels that restrain authority and mediate between power and liberty. By diluting the Supreme Court’s primacy, the PCA weakens this equilibrium.
When courts lose their central constitutional role, the rule of law risks becoming procedural rather than substantive.
"The rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power." — A.V. Dicey
Without strong constitutional courts, legal restraints on power become fragile and contingent.
5. The Federal Constitutional Court (FCC): Design Concerns
Specialised constitutional courts are not inherently problematic. However, Pakistan’s creation of the FCC removes constitutional adjudication from the Supreme Court, disturbing a balance restored by the 18th Constitutional Amendment.
The 18th Amendment had strengthened the Judicial Commission of Pakistan to depoliticise judicial appointments and insulate the judiciary from executive dominance. The FCC risks reversing these gains.
A major concern is the scope for executive influence over the FCC’s composition and functioning, which could transform judicial review into an extension of political power.
Judicial legitimacy flows from independence. New institutions lacking insulation risk weakening constitutional review rather than strengthening it.
6. Historical Illustration: Executive Power vs Judicial Independence
A foundational constitutional principle is illustrated by early 17th century England. King James I claimed the sovereign could personally adjudicate disputes, a position resisted by Sir Edward Coke, then Chief Justice.
Coke asserted that the king was subject to the law and could not sit in judgment. This confrontation affirmed that judicial authority must remain independent of executive will.
The episode remains relevant as it underlines that constitutional governance depends on insulating courts from even well-intentioned rulers.
Historical precedents reinforce that judicial independence is not symbolic but essential for the rule of law.
7. Why It Matters for India: Constitutional Lessons
The latter half of the 20th century saw newly independent nations adopt written constitutions as instruments to bind power and restrain authority. However, the 21st century has witnessed constitutions being reshaped to legitimise power concentration.
The PCA reflects this global trend, where democratic erosion occurs through formally valid legal changes rather than abrupt coups. Inter-war Europe of the 1930s demonstrated how institutions were hollowed out incrementally in the name of stability.
For India, the lesson is one of vigilance. Constitutional democracy depends not just on text but on judicial independence, institutional boundaries, and self-restraint.
Democratic decay often proceeds legally before it becomes visible politically.
Conclusion
Pakistan’s 27th Constitutional Amendment highlights how constitutional design choices can recalibrate power without overt disruption. By weakening the Supreme Court’s central role and empowering a potentially executive-influenced FCC, the PCA raises concerns about judicial independence and the rule of law. For India and other constitutional democracies, the episode reinforces the need to safeguard institutional autonomy to ensure that constitutions remain instruments of restraint rather than tools of power.