Rethinking Pakistan’s Constitutional Changes

Amnesty International’s recent statement on Pakistan’s 27th Constitutional Amendment characterizes the reform as a direct assault on judicial independence. However, a comparative analysis suggests that many of the features Amnesty decries like specialized constitutional courts, executive involvement in appointments, and functional immunity, are not only standard in Western democracies but are often hailed as benchmarks of institutional accountability. By stripping away the alarmist framing, one finds that the amendment aligns Pakistan with a global Kelsenian model of justice common in Europe.

A central pillar of Amnesty’s critique is that the creation of a Federal Constitutional Court (FCC) supersedes the Supreme Court. In reality, this is a redistribution of jurisdiction, not an erasure of power. Specialized constitutional courts are the norm in civil law traditions. Germany’s Federal Constitutional Court (Bundesverfassungsgericht) and France’s Conseil Constitutionnel operate separately from the regular supreme courts. These institutions ensure that constitutional adjudication, which often involves high-stakes political questions, is handled by a body specifically designed for that purpose, allowing the Supreme Court to focus on civil and criminal appellate work. Far from undermining the judiciary, this specialization prevents the judicialization of politics and streamlines the legal process.

Amnesty also argues that allowing the President and Prime Minister a say in judicial appointments enables political interference. Yet, the”purely judicial appointment model favored by critics is increasingly rare in mature democracies. In the United States, federal judges, including Supreme Court Justices, are nominated by the President and confirmed by the Senate under Article II of the Constitution, a process that is explicitly political. In the United Kingdom, the Lord Chancellor, a cabinet minister, plays a decisive role in the final recommendation of judges to the King. The French Conseil Supérieur de la Magistrature involves members appointed by the President and heads of parliament. These systems recognize that because the judiciary wields immense power over public policy, the democratic executive must have a role in ensuring that the bench reflects the broader social contract. Accountability to the electorate via their representatives is a prerequisite for, not a threat to, democratic legitimacy.

The resignation of senior judges is often cited as proof of a constitutional crisis. Historically, however, judicial pushback against reform is common when institutional turf is redefined. When Franklin D. Roosevelt proposed his Judicial Procedures Reform Bill of 1937, it was met with fierce judicial and political resistance, yet it ultimately led to a more responsive Supreme Court. In Pakistan’s case, the amendment was passed by a two-thirds majority in Parliament, the highest bar for legal change. Judges are interpreters of the law, but the legislature is the sole author of the constitution. To suggest that judge-led resistance renders a parliamentary act illegitimate is to invert the principle of parliamentary sovereignty.

Amnesty’s alarm over lifetime immunity for the President and military officials is similarly overstated. Most heads of state enjoy functional immunity to protect the office from debilitating litigation. In the United States, the Supreme Court recently reaffirmed in Trump v. United States (2024) that Presidents possess absolute immunity for core constitutional acts. France’s Constitution (Article 67) provides similar protections. The 27th Amendment’s focus on immunity during tenure ensures that the state’s highest offices can function without the constant threat of politically motivated lawfare. Accountability is not abolished, it is deferred to ensure governance stability, a practice consistent with international norms.

Furthermore, the expanded grounds for judicial removal, often framed as intimidation, are essential for transparency. In many Western jurisdictions, inefficiency or incapacity are standard grounds for the removal of judges. The UK’s Constitutional Reform Act 2005 allows for the removal of judges for misbehaviour, a term interpreted by the executive and legislature. Strengthening these mechanisms in Pakistan is a step toward ending judicial clannishness and ensuring that judges, like all public servants, remain answerable for their performance.

Ultimately, Amnesty International’s selective criticism ignores the fact that judicial structures are not monolithic. There is no international law requiring a single Supreme Court to handle all constitutional matters. By adopting a specialized court and refining the appointment process, Pakistan is moving toward a more modern, accountable, and European-style judicial framework. Rather than a regression, the 27th Amendment represents an effort to balance the often-competing demands of judicial independence and democratic accountability. Critiques that fail to acknowledge these global parallels risk appearing less like human rights advocacy and more like a defense of an outdated, unaccountable status quo.