Pakistan's 27th Amendment: Back to Square One

The 27thamendment in Pakistan has done what few political events have managed. It has taken already vulnerable institutions of governance on the brink of extinction. The amendment, which has been passed by both the Pakistan National Assembly (lower house) and the Senate, includes provisions that would weaken the judiciary, take powers back from the provinces and give sweeping powers to the Chief of Army Staff - Gen. Asim Munir. The amendment looks to scoop out the Supreme Court and replace it with an overarching Federal Constitutional Court (FCC) embodied with all the powers to overrule the former's authority. The dubious exercise also changes Article 243 which pertains to command of the Armed Forces in Pakistan. The Chief of Army Staff is now the commander of all Defence Forces besides life time immunity to five-star ranks (Field Martial) from all prosecution. Notably, Gen. Asim Munir was promoted to Field Martial soon after India launched Operation Sindoor in May to respond to Pahalgam attack by Pakistan-sponsored terrorists in May 2025.

Seizure of power by the Army is not new in Pakistan. Till the dawn of 21st century, Pakistani military leadership openly overthrew civilian governments to take control of the country's security and foreign policy. But what makes the present exercise more ominous is that rather than resisting change, the two main political parties - Pakistan Muslim League (Nawaz) and Pakistan Peoples Party - extended all support in giving concessions to the Army, despite a past in which leaders from both these parties were persecuted and overthrown by the military leadership. Imran Khan's Pakistan Tehreek-e-Insaaf (PTI) is among the few parties who are opposing the bill. Pointing to the civilian role in this coup, Pakistani newspaper Dawn has written, "This is not the first instance when the powers that be have sought to subjugate the judiciary, but it is the first time a civilian dispensation has so extensively facilitated the effort."

History of Strained Civil-Military relations

Pakistan got its first constitution in 1956 after a long fight over the contentious issue of political representation of West Pakistan and East Pakistan (now Bangladesh). It did not last long and the country was put under its first martial law by General Ayub Khan in 1958. Two years later, he promulgated a new constitution and ran the government as the President, vesting in himself all the powers. Gen. Ayub had to step down due to an uproar over domination of West Pakistan over its eastern wing. In 1971, Pakistan was split into two after India's intervention and Bangladesh was created. Thereafter, a civilian leader - Zulfikar Ali Bhutto - emerged as a populist leader and formed the first elected government. He gave Pakistan its third constitution in 1973, but his tenure was seen by many as a "civilian martial law". In 1977, Gen. Zia-ul-Haq usurped power, held the 1973 constitution in abeyance and hanged Bhutto. It was during Gen. Zia's time that Pakistan military was radicalized and strict Islamic laws were introduced into country's governance. He bestowed himself with absolute powers as the President through Eighth Amendment. After Gen. Zia was killed in a mysterious plane crash, the power oscillated between Benazir Bhutto and Nawaz Sharif between 1988 to 1999. Both tried to reinstate civilian supremacy but failed. Sharif's 13th amendment is a case in point. It took away the President's (Army chief) power to dissolve the National Assembly at will among others. It was one of the few bold steps taken to establish civilian hold over important Pakistani institutions. But Sharif's hand-picked General Pervez Musharraf reversed course once again in 2002 through the Legal Framework Order (LFO), restoring Presidential dominance. The pendulum swung back with the passage of the 18thAmendment in 2010, which retained the president's role as commander-in-chief and vested the authority in the federal government- an arrangement that remains in place even today.

18th Amendment: A Ray of Hope

The 18th constitutional amendment ushered-in the governance structure that promised administrative and financial empowerment of the provinces and curtailed the Punjabi-dominated Army's power, especially with respect to unilaterally dissolving national and provincial assemblies. The structural contours of the state were redefined through the shift of paradigm to decentralization from the heavily centralized federation dominated by the Army. The 18th Amendment was aimed at restoring the supremacy of the parliament.

The transfer of control of natural resources to the provinces under the 18th Amendment was also seen by the "deep state" as a reduction of their monopoly in managing the provincial assets. It is significant because, in an effort to gain favour with the United States, Gen. Asim Munir and Prime Minister Shahbaz Sharif have reportedly assured Donald Trump of access to Pakistan's rare earth minerals. A photo of the two showcasing samples to Donald Trump had also gone viral. It had prompted Pakistani senator Aimal Wali Khan, great grand-son of Abdul Ghaffar Khan, to question the official capacity in which Gen. Munir made the presentation. "Our chief of army staff is roaming around with a briefcase containing rare earth minerals. What a joke! It was absolute mockery."

These valuable resources are primarily located in regions such as Balochistan and Gilgit-Baltistan-areas that have long suffered repression at the hands of federal governments and Pakistani military over issues of resource control. Criticising the key features of the 27th amendment, Pakistani senator Raza Rabbani who was at the helm of the passage of the 18th amendment has warned that the present attempts are to "revoke provincial rights."

Weakening the judiciary

The establishment of an FCC alongside the existing Supreme Court will effectively render the latter toothless as its primary function will come down to be just of an appellate body under the new arrangement while the FCC would have exclusive authority over constitutional interpretation, inter-governmental disputes, and cases arising under Article 199, which presently fall within the jurisdiction of High Courts. All election disputes would now fall into the FCC's lap, making it easier for those in power to rig polls. The power to hear matters previously falling in the provincial High Courts jurisdictions will also be given to ruling regime's handpicked judges of the FCC. Additionally, the power to assign such cases has now shifted from the chief justices to the Judicial Commission of Pakistan (JCP), where the Chief Justice of Pakistan and other senior judges form a minority. The amendment also grants the President the power to transfer High Court judges across provinces - a significant departure from established practice. Judges who decline such transfers would be asked to retire. How facilitators of this amendment intend to justify in days to come what appears to be a direct assault on judicial independence remains to be seen.

There is a reason why Army has targeted the constitution in general and the judiciary in particular. One of the prominent takeaways of the 18th amendment was to declare the act of suspending/subverting/abrogating/conspiring or holding in abeyance the constitution as high treason. Moreover, in order to loosen the hold of the Army, the 18th amendment prevented the possibility of explicit military takeovers by prohibiting the judicial validation through "doctrine of necessity". The 27th amendment bypasses such key provisions of the 18th amendment and makes it easier for the military leadership to get what they want.

Consolidating Army's dominance

A fragmented judiciary and absolute commanding powers to the Army Chief make an unprecedented and dangerous cocktail, if Pakistan wants to survive as a parliamentary democracy, of which there are little chances now.

The changes in Article 243 have overhauled Pakistan's military command hierarchy. At the helm of the new amendment is a deception - to modernize defence coordination through the creation of a Chief of Defence Forces (CDF). This new position would replace the decades-old office of the Chairman Joint Chiefs of Staff Committee (CJCSC), who traditionally served as the symbolic head of the armed forces and facilitated coordination among the Army, Navy, and Air Force. This exercise marks a giant leap in favour of the Army and is an unwelcome departure from Pakistan's own dubious standards. Gen. Munir, the Chief of Army Staff is concurrently the Chief of Defence Forces and all three services are now under his command.

Since the times of General Pervez Musharraf, Pakistan's Army had stopped carrying out open coups and mastered the art of controlling civilian governments through constitutional backdoor by muzzling political opposition (Imran Khan), arm twisting weak and malleable leaders (Shahbaz Sharif and Bilawal Bhutto) and handing out sops to like-minded parties. Pakistan is increasingly getting into an anomalous political situation where two contradictions go hand in hand - making constitutional democracy the only option for a viable form of government and making it as toothless as possible.

To rephrase the words of noted Pakistani scholar Ayesha Jalal in present context, "The new cabinet under Shehbaz Sharif is making amendments which are 1) prepared by bureaucrats, 2) approved by the Chief of Army Staff and 3) legally sanctioned by the power-enjoying President and Prime Minister."

Dr Sharma is an Assistant Professor with University of Petroleum and Energy Studies (UPES). Dr. Sharma holds a Ph.D. in International Relations with research expertise in federalism and South Asian politics.