Twenty-seventh Constitutional Amendment

by Hadhrat Mawlana Mufti Muhammad Taqi Usmani (damat barakatuhum), President, Darul Uloom Karachi. Translated by Muhammad Faisal Siddiqui.

All praise is due to Allah, who created this universe.

And Blessings and peace be upon the last Prophet who proclaimed the truth in the world.

The constitution of a country is the cornerstone of the country’s system of government, and Pakistan is no exception to this rule. From 1947 to 1973, various drafts of the constitution were prepared. Some of them were temporarily implemented, but the issue (of the constitution) remained controversial. With reliance on Allah, in 1973, the current constitution was approved with the consensus of all political and religious circles. Except for a few issues, this constitution was such that it could be called the constitution of an Islamic state. Therefore, religious circles also accepted it as something to be truly grateful for [in the circumstances].

This unanimous constitution also contains a provision that if any amendment is needed, it can be amended by a two-thirds majority of the Shura Council. Accordingly, several amendments were made in the past on this basis, some of which also strengthened the constitution from an Islamic perspective – such as the amendment related to the finality of the Prophethood and the amendments related to the establishment of the Federal Sharia Court and the Appellate Bench of the Supreme Court.

Now, an amendment called the Twenty-Seventh Amendment has been passed by both houses, which is nowadays a matter of debate among intellectuals. It seems necessary to examine it impartially and make necessary comments on it.

The first point to note here is that the proper way to amend the constitution should be to publish its main points in advance with clarity, giving the country’s intellectuals an opportunity to reflect on and comment on it. On the contrary, this amendment has been prepared and approved in such a haste that many members of the Shura Council have been found complaining that they came to know about it at the very end, so they did not get a chance to reflect on it.

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This amendment consists of twenty-one pages of the published Gazette; and after careful review, its key points are:

(1) A new court called the “Federal Constitutional Court” has been established, which has been given the final authority to decide all constitutional cases. Cases decided under Article 199 in any High Court may now be appealed only through this new court, rather than the Supreme Court, and this [new] court itself will be able to call for the record of such cases from the High Court.

Constitutional cases, which were previously decided by the Supreme Court in accordance with its rules, have now been transferred to this Constitutional Court, and its decision has been declared final; the Supreme Court has also become bound by its decision.

In this matter, there may be two opinions: to keep such cases in the Supreme Court as before, or to establish a new court for this purpose – as is the case in some other countries. This may have its advantages and disadvantages. But in the current circumstances – when many constitutional cases are pending in the Supreme Court, which are also related to the political environment of the country – the sudden establishment of a court in which the appointment of the judges for its first term has been entrusted to the Prime Minister and the President, certainly raises some doubts.

Regardless of whether it is the Supreme Court or the new Constitutional Court, the actual issue is that if its judges are independent of politics and interests and make decisions in accordance with the Constitution with complete impartiality, then whether they are in the Supreme Court or the Constitutional Court, it doesn’t matter. But if, God forbid, judges feel any pressure while performing their duties, whether they are in the Supreme Court or the Constitutional Court, there will be an obstacle in the path of justice.

That said, after the establishment of the new Constitutional Court, some important issues may arise, for which no solution is apparently found in the text of this amendment; and there is a fear that they may lead to disagreements between the courts and, as a result, compounded delays in deciding cases.

For example, one matter is that before the establishment of the new court, the Supreme Court had already interpreted the Constitution on many issues. The question would arise as to whether the new Constitutional Court would be bound by the decisions that the Supreme Court had already given before the existence of the Constitutional Court?

Also, although now constitutional matters will go to the new court, it often happens that the original case is of a general nature and cannot be directly called a constitutional case – but while deciding this general case, the court has to interpret an article of the Constitution. If the Supreme Court is deciding a general case – for example, a civil case between two individuals or a criminal case, it has to interpret some article of the Constitution – then will the Supreme Court not be able to interpret the Constitution to that extent? And if it does, can it be challenged in the Constitutional Court? And if it cannot, will that case go to the Constitutional Court? In both cases, ambiguity and unusual delay are inevitable to reach the actual outcome.

(2) According to the original Constitution, no High Court judge could be transferred to another High Court without his consent. Article 200 of the Constitution was clear in this regard.

But through this new amendment, a major change made in Article 200 is that a judge can be transferred even without his consent. If he refuses the transfer, action, under Article 209, will be taken against him in the Supreme Judicial Council within thirty days, ; during which period he will be stopped from working as a judge. It may be noted that under Article 209, action is usually taken against judges who are accused of any misconduct.

Forcing High Court judges to transfer is certainly something that goes against the independence of the judiciary. In this manner, action may be taken against any judge that the government dislikes for any political or personal reason.

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(3) The third important and highly objectionable change that has been made is that even earlier, Article 248 of the Constitution had provided the President with the protection that no criminal proceedings could be initiated against him in court during his term of office – meaning that no case could be filed against him for any crime as long as he held the office of the President.

This provision was wrong from a Sharia perspective, even then. In Islam, it is completely impermissible to give such immunity to any head of state. The Holy Prophet ﷺ himself and the Rightly Guided Caliphs, instead of giving this protection to themselves, had given clear rulings against it.

But through this 27th Amendment, instead of abolishing this protection, it has been further expanded – meaning that now this protection will remain not only during the presidency, but also for life after the presidency ends, and no action will be taken against the President for any crime during his lifetime.

Just as this protection has been given to the President, similarly, through the amendment to Article 243, Field Marshal, Marshal of the Air Force and Admiral of the Fleet have also been granted immunity from any criminal action for life. Before this, these positions did not exist in the Constitution, but it is advisable to give such titles to military leaders who have performed distinguished deeds in the defense of the country. There is nothing objectionable in giving them as many honors as they deserve in a battle of Haqq. But giving them exemption from judicial proceedings is not only wrong but is akin to tainting their positions with a kind of stain.

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Among the above amendments, there are at least two that are undermining the Islamic and judicial status of the country’s constitution. The most objectionable issue among them is that the President, Field Marshal, Marshal of the Air and Admiral of the Fleet have been completely exempted from judicial proceedings for any crime for life. This is a stain on our constitution – the sooner it is removed, the better.

Praise be to Allah, we are proud of our forces, for the way they proved their sense of responsibility, bravery and significance in the battle of Haqq is unparalleled, and by the grace of Allah, this has created love for them and positive sentiment among the entire nation. They deserve the highest positions for this, but they are the generals of an Islamic country. Therefore, it is in no way appropriate for the government and parliament to damage such positive sentiment that has been created among the people about them by tarnishing their character. And Allah is watchful over what we say.