After days of speculations, finally the draft of the 27th Constitutional Amendment has come to the fore with its tabling in the Senate on Saturday.
As is seen often, there is a mixed reaction on the constitutional amendment and the focus of discussion is mainly on the constitution of a Federal Constitutional Court and making the Chief of Army Staff also the Chief of Defence Forces after abolishing the office of the Chairman Joint Chiefs of Staff Committee.
The bill has opened up a wide-ranging debate not only in political circles but also among constitutional experts, jurists and the general public, as it carries major changes in the judicial system and the military structure. The proposed formation of a Federal Constitutional Court (FCC) has become the most talked-about aspect of the amendment. The fact of the matter is that such courts exist in most parts of the world, including Europe and Asia. Countries such as Germany, Italy, South Korea and Indonesia have long operated such courts to specifically deal with constitutional interpretation and disputes between organs of the state. However, in our country, eyebrows have been raised over this proposal not only this time but also when the 26th Amendment was being passed. At that time, the government, instead of establishing a separate constitutional court, went for the creation of a constitutional bench within the Supreme Court to address similar concerns. Some legal experts believe that the tweaks introduced in this bill would, in effect, dethrone the Supreme Court as the country’s highest judicial forum, ceding that position to the proposed Federal Constitutional Court. They argue that this might create an unnecessary parallel system and disturb the delicate judicial hierarchy enshrined in the Constitution of 1973. The apprehension is that such a move could lead to jurisdictional confusion, institutional rivalry and possible politicization of appointments to the new body. However, proponents of the amendment hold an entirely different view. They claim that the establishment of a Federal Constitutional Court will modernise the judicial structure by clearly demarcating the constitutional and appellate jurisdictions. According to them, this separation would help reduce the heavy backlog of cases in the Supreme Court and allow constitutional matters often of immense national significance to be dealt with more efficiently and promptly. On the surface, the idea of creating a constitutional court looks good and even necessary in light of the growing complexities of constitutional litigation. However, since such a major shift is being introduced, it should be undertaken only after detailed deliberations with legal experts as well as through extensive discussions within Parliament. Constitutional amendments of such significance must be driven by consensus, not expediency. The process should not give the impression that the new forum is being created to accommodate particular judges or to shift the balance of power within the judiciary. All judges are honourable. Therefore, utmost care must be taken to ensure that the formation of the FCC strengthens, rather than undermines, judicial independence.
Equally important are the proposed changes to Article 243 concerning the command and control structure of the Defence Forces. The 27th Constitutional Amendment proposes that the Chief of Army Staff (COAS) will also serve as the Chief of Defence Forces. Consequently, the office of the CJCSC will stand abolished after the expiry of the current incumbent’s tenure. The rationale behind this move appears to be the desire for a more centralized and streamlined military command structure. During recent episode of heightened tension with India, we believe it would have been felt that a unified command system could ensure swift, well-coordinated and timely decision-making. In a rapidly evolving regional security environment, where hybrid warfare, border skirmishes and emerging technological threats pose constant challenges, such a unified structure could enhance strategic efficiency and operational effectiveness. Our Defence Forces have always risen to the occasion, defending the nation’s sovereignty and earning the admiration of the entire populace. The proposed restructuring, therefore, should be viewed as a step toward improving coordination among the three services rather than as a move to concentrate power in any single institution. The decision also reflects the recognition of changing security needs, necessitated by an increasingly hostile Indian posture and shifting regional dynamics. Defense experts also are of the view that in Pakistan’s context appointing an army chief as CDF aligns with geography, threat perception and historical campaign experience. It is noteworthy that the bill also formalizes the honorary titles of field marshal, marshal of the air force and admiral of the fleet, allowing such officers to retain their titles and privileges for life. This symbolic recognition underscores the nation’s respect for its military leadership and heroes who have dedicated their lives to the defence of the country.
