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 powers. A fragmented apex judiciary creates opportunities for forum shopping, political interference, and divided legitimacy, which ultimately erode public trust in the constitutional order.
From the standpoint of the basic structure doctrine—originating in India’s Kesavananda Bharati case and increasingly invoked by Pakistani scholars and jurists even though not formally adopted by Pakistan’s judiciary—the 26th and 27th Amendments may be viewed as violating fundamental features of the Constitution. The basic structure doctrine asserts that certain constitutional principles are so essential to the identity of the constitutional order that they cannot be amended, even through the constitutionally prescribed amendment process. In Pakistan, while the Supreme Court has never formally articulated this doctrine, several judgments have hinted at constitutional “salient features” such as democracy, federalism, judicial independence, separation of powers, and the parliamentary system. Through this doctrinal lens, the 18th Amendment reinforces the basic structure by restoring parliamentary democracy and reversing distortions introduced under military rule. By contrast, the 27th Amendment’s creation of a parallel constitutional apex court and its grant of lifetime immunities to the President and military leadership amount to a structural reconfiguration that undermines judicial independence, weakens civilian supremacy, and concentrates power in ways incompatible with democratic constitutionalism. Even without a formal basic structure doctrine, such amendments contradict the internal logic and spirit of the 1973 Constitution.
The grant of lifetime criminal immunity to the Field Marshal and to the President raises additional concerns under theories of constitutionalism. Constitutionalism rejects the notion that any office or individual should exist beyond the reach of law, because accountability is a defining feature of democratic governance. Immunity provisions may be justifiable in narrow contexts—such as protecting an incumbent from frivolous litigation—but lifetime immunity, extending beyond tenure, violates the principle of equality before the law. It creates a legal hierarchy in which certain actors are placed above constitutional and democratic accountability. This places Pakistan in direct conflict with universal principles of constitutional democracy and aligns it more closely with authoritarian regimes that treat the constitution as an instrument to shield power rather than regulate it.
Under the theoretical framework of separation of powers, the 27th Amendment represents a significant erosion of judicial authority and an expansion of executive–military influence. The FCC effectively becomes an institution through which executive preferences can be projected onto constitutional interpretation, thereby weakening the judiciary’s ability to act as a check on unconstitutional or unlawful state action. Such a reconfiguration is not merely a political shift but a theoretical transformation that alters the constitutional identity of the state. Where the 18th Amendment enhanced the internal coherence and democratic legitimacy of Pakistan’s constitutional structure, the 26th–27th Amendments represent a departure from the foundational principles of the Constitution and from global norms of constitutional governance.
In terms of implications for Pakistan’s democratic trajectory, the adoption of the 26th and 27th Amendments raises troubling possibilities. First, the weakening of the Supreme Court and the creation of a politically influenced FCC may lead to constitutional instability, inconsistent interpretations, and institutional conflict. This undermines the predictability required for democratic governance and economic development. Second, lifetime immunities for powerful actors reduce incentives for constitutional fidelity, encouraging further centralization of power and erosion of democratic norms. Third, by dismantling the seniority principle and altering the judicial hierarchy, the amendments risk fostering a culture of judicial compliance rather than independence, where judges may feel pressured to align with prevailing political interests. Fourth, the weakening of provincial rights through the undermining of judicial remedies may further strain Pakistan’s already fragile federal structure, potentially exacerbating regional grievances.
To mitigate these risks, several recommendations follow from theories of constitutional design and democratic resilience. Strengthening judicial independence should be a priority, which may require revisiting or repealing the 26th and 27th Amendments through broader political consensus. Reaffirming the seniority principle, or adopting transparent criteria for judicial appointments, could help restore institutional legitimacy. Re-establishing the Supreme Court as the apex constitutional court is essential for maintaining judicial coherence and preventing jurisdictional fragmentation. Furthermore, any immunity provisions should be revisited to align with democratic standards, ensuring that accountability remains a central constitutional principle. Civil society, bar associations, universities, and political parties must engage in sustained constitutional literacy efforts to build a culture that resists personal or authoritarian amendments. Lastly, Pakistan’s political leadership must acknowledge that constitutional endurance depends on restraint, consensus-building, and fidelity to democratic values—principles embodied in the 18th Amendment but undermined by the 26th and 27th Amendments.
In conclusion, the theoretical comparison between these constitutional amendments reveals a fundamental struggle over Pakistan’s constitutional identity. The 18th Amendment stands as a democratic restoration rooted in constitutionalism, separation of powers, and respect for institutional autonomy. The 26th and 27th Amendments, however, embody a centralizing and defensive constitutionalism aimed at consolidating power and shielding key actors from accountability. Pakistan now faces a critical juncture: whether to preserve the spirit of its 1973 constitutional order or to accept a new constitutional paradigm shaped by political expediency and institutional imbalance. The path chosen will define the trajectory of democracy in Pakistan for decades to come.
