EDITORIAL: The 27th Amendment

EDITORIAL: The 27th Amendment has been rushed through parliament with a speed that has raised more questions about process than answers about reform. Parliament unquestionably holds the right to amend the constitution, no doubt, but the Supreme Court carries, or has carried at the very least, the corresponding duty to ensure that constitutional requirements are met, and that changes of far-reaching consequence are tested against the principles that hold the system together. When that balance is disturbed, legitimacy becomes the first casualty.

Nothing in the constitution prevents parliament from creating a Federal Constitutional Court or revisiting judicial structures. Yet the manner in which this amendment was advanced – without prior consultation with the superior judiciary, without open debate, and without responding to written concerns raised by sitting judges — has given birth to public mistrust at precisely the moment when transparency was most needed.

The sequence speaks for itself. Before the amendment’s passage, senior Supreme Court judges, including Justices Mansoor Ali Shah and Athar Minallah, wrote formal letters to the Chief Justice, urging him to convene a full-court meeting so that the judiciary could examine the implications clause by clause.

A third judge, Justice Salahuddin Panhwar, did the same. Their concerns were not peripheral; they pointed directly to questions of judicial independence, tenure, bench composition, and the redistribution of constitutional authority. When amendments strike at these foundations, the process must be inclusive and deliberate.

Yet the full-court meeting was called only after the amendment had already become law — and, as the Supreme Court’s own press release made clear, the meeting did not discuss the amendment at all. Instead, it addressed administrative matters relating to the Supreme Court Rules 2025. That omission is not a mere procedural footnote. It is a stark departure from the minimum standard of engagement expected when parliament alters the architecture of the judiciary.

The consequence was predictable. Within hours of presidential assent, Justices Shah and Minallah tendered their resignations, calling the amendment an assault on the constitution and a dismantling of the Supreme Court’s most sacred constitutional role. Their letters were explicit: they had sought constructive engagement before the amendment was passed, and when it did not come, they refused to lend their presence to what they regarded as a distortion of judicial independence. The resignations are unprecedented in the court’s recent history, and they reflect defiance and fidelity to the oath they repeatedly referenced in equal measure.

In this context, the government’s decision to respond with political attacks on the departing judges has set an unfortunate precedent. Criticism from the floor of the National Assembly framed the resignations as personal grievance rather than principled objection, and revived past political grievances unrelated to the amendment itself. At a moment when the state needed restraint and seriousness, it chose confrontation. That choice has not strengthened the credibility of the reform; it has weakened it.

The central problem is not whether constitutional reform is permissible. It is whether it is legitimate. When changes are pushed through at pace, without airing the judiciary’s institutional concerns, the resulting structure may be legally enacted but politically brittle. Reform of this scale requires public confidence. It requires clarity about intent, transparency about implications, and engagement with those who must interpret and implement the amended provisions.

Instead, the public has witnessed opacity at key stages. The amendment was revised and returned to the Senate at the last moment. The new Federal Constitutional Court was operationalised within a day, complete with a sworn-in chief justice and appointed judges, even as the Supreme Court’s internal concerns remained unaddressed. And the most respected voices within the judiciary — the same judges who sought discussion before passage — felt compelled to leave the bench entirely.

This is not a sustainable way to handle constitutional change. Pakistan’s institutional balance must depend on each branch respecting the limits of its authority while acknowledging the responsibilities of others. Parliament may legislate, but the judiciary must safeguard the constitutional spirit. For reforms to endure, both roles must be exercised with transparency and restraint. The public deserves nothing less.

Copyright Business Recorder, 2025