Context

• The passage of Pakistan’s 27th Constitutional Amendment (PCA) marks a significant turning point in the country’s constitutional evolution.
• Introduced under the pretext of reorganising aspects of military command, the amendment fundamentally alters the structure of constitutional governance.
• By transferring original jurisdiction over constitutional interpretation, fundamental rights, and federal–provincial disputes from the Supreme Court to a newly created Federal Constitutional Court (FCC), the PCA reshapes the balance of institutional authority.
• This change raises serious concerns about judicial independence, executive dominance, and the long-term stability of constitutional checks and balances. 

The Marginalisation of the Supreme Court of Pakistan

• The Supreme Court of Pakistan has historically served as the principal guardian of the Constitution, particularly through its original jurisdiction.
• This authority enabled it to adjudicate landmark political cases, including the Panama Papers and Memogate controversies, placing the Court at the centre of constitutional accountability.
• The PCA removes this pivotal role, fragmenting constitutional adjudication and weakening the Court’s position as the final arbiter of constitutional meaning.
• This reallocation of authority is not merely procedural. It risks institutional marginalisation, especially in a political system where executive influence has frequently tested judicial autonomy.
• By sidelining the apex court from the most consequential constitutional questions, the amendment undermines coherence in constitutional interpretation and diminishes the Court’s ability to function as an effective check on power.

Judicial Independence and the Rule of Law

• At the heart of constitutional governance lies the rule of law, articulated most famously by A.V. Dicey.
• This doctrine rests on the absence of arbitrary power, equality before the law, and the central role of independent courts as protectors of rights.
• Courts, within this framework, are not passive institutions but active guardians that restrain authority and preserve liberty.
• The PCA unsettles this equilibrium. While specialised constitutional courts are not inherently problematic, their legitimacy depends on demonstrable independence.
• The FCC’s creation, coupled with the scope for executive influence over its composition and functioning, raises the risk that judicial review may become an extension of political power.
• This concern is particularly stark given that the 18th Amendment had sought to insulate the judiciary by strengthening the Judicial Commission of Pakistan and reducing executive interference. The PCA appears to dilute these safeguards.

Historical Warnings and Constitutional Lessons

• The tension between executive authority and judicial autonomy has deep historical roots.
• In early 17th-century England, King James I claimed the right to personally adjudicate disputes, a claim firmly rejected by Sir Edward Coke, the Chief Justice.
• Coke’s insistence that the monarch was subject to the law established a foundational constitutional principle: judicial authority must remain separate from executive will.
• This episode underscores that constitutional governance relies not on the goodwill of rulers but on institutional insulation from power.
• Courts operating under political pressure cannot serve as neutral arbiters.
• The PCA echoes this historical struggle by relocating constitutional interpretation to a forum potentially vulnerable to political preferences, thereby weakening the structural foundations of judicial neutrality.

Regional Context and Implications for India

• The PCA must be understood within a broader South Asian context marked by political instability, security pressures, and institutional strain.
• In such environments, governments are often tempted to prioritise control over constitutional restraint.
• For countries in the Global South, where democratic institutions remain fragile, constitutional design choices carry lasting consequences.
• For India, developments in Pakistan are instructive rather than comparative. As the region’s largest constitutional democracy, India has a vested interest in the health of constitutional norms across its neighbourhood.
• The erosion of judicial independence or the normalisation of executive dominance elsewhere in South Asia offers a cautionary lesson.
• History demonstrates that democratic decline is often incremental, achieved through formally valid legal changes rather than abrupt ruptures.
• The experience of inter-war Europe illustrates this danger vividly. Democratic systems were hollowed out through constitutional amendments enacted in the name of stability and necessity.
• Power was consolidated legally, even as institutional checks were steadily dismantled.
• The PCA reflects a similar pattern, preserving constitutional form while weakening constitutional substance.

Conclusion

• Pakistan’s 27th Amendment represents more than an administrative restructuring; it signals a shift in constitutional philosophy.
• By diminishing the role of the Supreme Court and empowering a potentially executive-influenced FCC, the amendment risks transforming the Constitution from a shield against power into an instrument of governance.
• For India and the wider region, the lesson is clear: constitutional democracy depends not merely on written texts but on sustained respect for judicial independence, institutional boundaries, and constitutional restraint.
• The choices republics make today will determine whether this century is defined by democratic renewal or by the quiet erosion of constitutional spirit.