Comparison of 18th, 26th, and 27th Amendments of the Constitution of Pakistan, 1973 |
The comparison between the 18th Amendment and the later 26th–27th Amendments becomes even sharper when examined through the lens of constitutionalism and the basic structure doctrine. Constitutionalism implies more than the existence of a written Constitution; it embodies the principles of limited government, separation of powers, checks and balances, accountability, and the rule of law. A Constitution, under the theory of constitutionalism, is not merely an instrument for governance but a restraint on the arbitrary exercise of power. The 18th Amendment aligns with this theoretical framework by restoring constitutional equilibrium that had been distorted by military regimes. It sought to reconstitute the original architecture of the 1973 Constitution by limiting presidential powers, strengthening parliamentary supremacy, and reinforcing provincial autonomy. Such reforms reflected a commitment to the basic ideals of constitutionalism: dispersal of power, democratic accountability, and institutional independence. The enhancement of the seniority principle for appointing the Chief Justice, for instance, was not only a political accommodation but also a constitutional safeguard against executive interference, an attempt to protect the judiciary as an independent interpreter of the Constitution.
The 26th and 27th Amendments, however, reveal an opposite constitutional philosophy. By altering the seniority rule and creating a panel system open to manipulation, the 26th Amendment weakened the normative foundations of judicial independence. This restructuring cannot be understood merely as an administrative reform; rather, it represents a direct interference with a core constitutional principle that had evolved through decades of judicial precedent, political experience, and institutional practice. Similarly, the 27th Amendment’s creation of a Federal Constitutional Court, sitting above the Supreme Court in matters of constitutional interpretation, disrupts the coherent hierarchy of courts that is essential to constitutional governance. The fact that FCC decisions are binding on the Supreme Court, but not vice versa, violates the theoretical requirement of judicial finality—one of the cornerstones of the separation of........