Is Pakistan's 27th Amendment to the Constitution constitutional?

The Lahore High Court Bar Association thinks not, and that as a result, the intra-court appeals concerning the exercise of court-martial jurisdiction over civilians must be returned from the new Federal Constitutional Court to the Supreme Court of Pakistan. Details from the bar's submission can be found here. Excerpt from Dawn's report:

The application contended that the 27th Ame­ndment was in violation of the salient and essential features of the Constitution, stating that the 1973 Constitution defined the powers of the legislature, the executive, and the judiciary.

“While parliament possesses the power to amend the Constitution, it does not function as a constituent assembly and is subject to both express and implied limitations,” it added.

The application pointed out that the jurisprudence of the SC — most recently the authoritative 17-member judgement in the Rawalpindi District Bar Association case — had affirmed that parliament could not, through any amendment, alter or abrogate the salient or essential features of the Constitution, including the independence of the judiciary.

The application pleaded that both the 26th and 27th amendments impermissibly encroached upon judicial independence and restructured the constitutional architecture in a manner inconsistent with these unamendable features. Therefore, they constituted an invalid exercise of amendatory power.

It argued that a constitutional amendment, which undermined judicial independence while simultaneously divesting pre-existing constitutional courts of jurisdiction to examine its validity, violated fundamental constitutional principles.

“If permitted, parliament can abolish or replace the forum for constitutional adjudication at will, thereby insulating unconstitutional amendments from judicial scrutiny,” the plea feared.

The application further noted that the SC had consistently distinguished betw­een “jurisdiction” and “judicial power”.

“Even where parliament modifies jurisdiction, judicial power — i.e. the authority to determine whether jurisdiction exists — remains inherent in the superior judiciary,” it read.

“Accordingly, notwithstanding the 27th Amendment, it lies within the judicial power of the SC to determine whether it has been validly divested of jurisdiction. The subject appeal must therefore be restored to the SC for that purpose.”