The proposed 27th Constitutional Amendment Bill in Pakistan, recently approved by the Senate and awaiting a vote in the National Assembly, is set to introduce sweeping, controversial changes to the country’s military command structure and judicial system. Critics warn the amendment centralizes power in the executive and military, potentially leading to a weakened and controlled judiciary, while defenders argue the changes are necessary administrative and procedural reforms.
🛡️ Reshaping the Military and Granting Lifetime Immunity (Article 243)
The amendment focuses heavily on Article 243 of the Constitution, which governs the relationship between the civilian government and the armed forces. Key proposed changes include:
- Creation of a Chief of Defence Forces (CDF) Post: The amendment would establish the new position of Chief of Defence Forces (CDF), which would be held by the current Chief of Army Staff (COAS). This effectively grants the COAS authority over the Air Force and Navy, unifying strategic command. The existing post of Chairman of the Joint Chiefs of Staff Committee (CJCSC) would be abolished later this month.
- Lifetime Immunity for Five-Star Officers: The most contentious provision is the one that would grant lifetime immunity from criminal prosecution to officers holding the five-star rank (Field Marshal). They would also be allowed to “retain rank, privileges and remain in uniform for life.”
- Context: Currently, only two Pakistani officers have ever achieved this rank: Field Marshal Ayub Khan (in the 1960s) and the current COAS, Field Marshal Asim Munir (promoted in May).
- Controversy: Critics argue this institutionalizes the supremacy of non-elected officials over democratically elected leaders, who do not enjoy such lifelong immunity. Removing a five-star official would require a two-thirds majority in Parliament, a significantly higher hurdle than removing a Prime Minister.
- Commander of the National Strategic Command (NSC): The bill proposes creating the post of Commander of the NSC, responsible for the country’s nuclear command, to be appointed exclusively from the Army in consultation with the Army Chief/CDF.
🏛️ Restructuring the Judiciary: The Federal Constitutional Court (FCC)
Separate provisions aim to significantly alter the structure and powers of the judiciary, primarily through the establishment of a new apex court.
Introducing the Federal Constitutional Court (FCC)
- Purpose and Jurisdiction: The 27th Amendment seeks to create a permanent Federal Constitutional Court (FCC), headed by its own Chief Justice. The FCC would be tasked with adjudicating disputes between governments (federal vs. state, or inter-state) and interpreting the Constitution.
- Defenders’ View: Supporters argue the FCC will provide “focused expertise and timely adjudication” for constitutional matters, relieving the Supreme Court of a burden that hampers the disposal of regular civil and criminal cases.
- Critics’ View: Critics, including senior Supreme Court judges, strongly oppose the move, calling it a “political device to weaken and control the judiciary.” They warn that the Supreme Court of Pakistan (SCP) would be reduced to only an appellate court, thereby losing its crucial original jurisdiction for holding the executive accountable. The FCC judges would be appointed by the executive, raising fears of a court potentially used to give “constitutional cover and legitimacy” to government decisions.
Changes to Judicial Transfers
- Transfer without Consent: The amendment proposes to change the process for transferring High Court judges. The President would be able to transfer a judge from one high court to another on the recommendation of the Judicial Commission of Pakistan (JCP), without the concerned judge’s consent.
- Mandatory Retirement for Refusal: If a judge refuses the transfer, they would present their reasons to the JCP. If the JCP deems the reasons invalid, the judge would be compelled to retire. Legal experts view this as a “veiled threat” that weaponizes administrative power to enforce compliance and undermines judicial independence.
⚠️ Controversy and Implications
The bill has generated significant criticism due to its content and the expedited manner in which it was pushed through, notably passing the Senate in a single evening after an opposition boycott.
- Centralization of Power: The primary criticism is that the amendment aims to shield the military leadership from accountability while simultaneously weakening the Supreme Court’s oversight over the government and the executive branch.
- Erosion of Democracy: The move is seen by many legal experts as granting non-elected military officers protections and powers that surpass those of democratically elected leaders, with one critic calling it a “constitutional surrender” and the institutionalization of the “supremacy of the uniform over the ballot.”
- Lack of Public Debate: Unlike previous amendments, the 27th Amendment was moved with extreme haste, without the customary months of public debate and consultation with the wider legal fraternity and civil society, leading the Human Rights Commission of Pakistan (HRCP) to question the government’s intentions.
