On November 13, Pakistan’s National Assembly passed the 27th Amendment to the constitution that entrenches Pakistan’s powerful military’s hold on power, making it invincible in the country’s power play with no accountability. The 27th Amendment Act was a natural progression from the 26th that reduced the power of the judges in judicial appointments by sacrificing the principle of seniority established through the 18th Amendment Act—which had made mandatory recommendation of three names by the Judicial Commission of Pakistan (JCP) for the consideration out of which only one will be selected by the executive to head the Supreme Court (SC).

Undermining judiciary

The establishment of a permanent Federal Constitutional Court (FCC) by amending Article 42 and mandating it to hear the constitutional petition takes away the power of the SC to review and hear constitutional petitions. The government has argued that the top court is inundated with constitutional petitions that take much of the court’s time, and dispersal of civil litigation is often delayed, confining the court to focus on appellate jurisdiction. The JCP is mandated to make appointments to the FCC. The retirement age limit for the Chief Justice of the FCC is fixed at 68, and they are appointed by the Special Parliamentary Committee consisting of the ruling party, the opposition and the Chief Justice. After this committee makes the first appointment to the FCC, the Chief Justice automatically becomes a member of JCP. The government has already appointed Justice Aminuddin Khan as the first Chief Justice of the FCC, along with six other judges.

The existing JCP has five members from the judiciary out of the total 13 members, subjecting the judges to political whims and fancies. Judges can now be transferred, and if they do not accept the transfer, they have to resign. The FCC will have power over all the courts of Pakistan, including the SC. Two of the senior judges of the SC, Justices Mansoor Ali Shah and Athar Minallah, have resigned protesting the undermining of the judiciary through the 27th Amendment.

What is interesting is that the manner in which the government hurried through this amendment, even though it undermines the democratic institutions and the civilian setup, and shifts more power to the military.

The government’s seeming rush to present the amendment the day the Cabinet approved it, especially when the prime minister was visiting Baku and had to attend the Cabinet meeting virtually, appears to be dictated by its own apprehension about the possibility of Imran Khan getting a judicial reprieve. In August this year, the SC granted bail to Khan in eight cases pertaining to the May 2023 violence and attack on military installations. He is yet to get bail in the Al-Qadir graft case, which is pending in spite of his application for an early hearing of the case. Unpredictable behaviours of the court sometimes go against the civilian government and the Army. For instance, the removal of prime ministers on the grounds of non-compliance with court orders to the summoning of the military and the ISI in cases of missing persons in Balochistan and Faizabad sit-ins organised by the Islamists, as an analyst said, necessitated ‘structural containment over tactical management’.

Entrenchment of the military

The 27th Amendment Act further strengthens the hold of the military on the state. The creation of the position of the Chief of Defence Forces (CDF) by amending Article 243 and abolishing the position of the Chairman of the Joint Chiefs of Staff Committee (JCSC) and making the Army Chief hold the position of the CDF has given the Army overall control. The position of JCSC was created in 1976 by former Prime Minister Bhutto to curtail the power of the military. However, the JCSC, since its creation, has functioned without any power, even though a senior four-star General occupies the position. With the Chief of Army Staff simultaneously holding the position of the CDF, they will have an edge over other services, as well as control over the Nuclear Command Authority.

The Army also indemnified itself from criminal persecution. It appears Field Marshal Munir will be the main beneficiary of the change. Any five-star general appointed by the government ‘shall retain the rank, privileges and remain in uniform for life’ and will not be subjected to criminal persecution for life. They ‘shall not be removed from office except on the grounds or charges and in the manner provided under Article 47’ which deals with the impeachment of the President of Pakistan, now applicable to the five-star General. Removal requires approval by a two-thirds majority of the Parliament. This effectively binds the government to a complex procedure, which makes it impossible to remove a Field Marshal and equivalent rank in the Navy and Air Force of Pakistan.

Democracy’s dilapidating future

The Pakistan Army has been a powerful institution, whether they are in power or otherwise. Interestingly, the PML-N and the PPP, which had once signed the Charter of Democracy to prevent it from intruding into politics, joined hands in an unprecedented show of unity to cede space to the military. A similar kind of consensus was noticed when the Pakistan Tehreek-e-Insaf party brought an amendment to the Pakistan Army Act in 2020 to legitimise the extension given to the Army chief before his tenure comes to an end.

The undermining of the judiciary and the elevation of the military only help the hybrid system that has been in place in Pakistan as the new model of democracy, where the Army is a power broker, making and breaking Pakistan’s elected government through electoral engineering. Rather than inching forward to consolidate democracy, each political party in Pakistan has cut a deal to remain in power, thus dispelling any hope for a return to democratic norms that enjoin civilian supremacy and a strong institutional framework.