he sovereign decides on the exception; the democrat must decide whether to live within it.”

The 27th Amendment can be read in multiple ways: as a compromise, continuity or a quiet recalibration of institutional architecture. It neither marks a decisive rupture nor a simple regression; rather, it intensifies a long-running tension in Pakistan’s constitutional life – the uneasy choreography between power and legality. Each constitutional moment here unfolds within this contested space, where the rhetoric of democracy is braided with the grammar of exception.

Pakistan’s judiciary has historically navigated a precarious path between legality and sovereignty. The Doctrine of Necessity, judicial endorsements of coups and interventions against elected governments reveal a pattern in which courts oscillated between arbiters of law and instruments of power. Zulfikar Ali Bhutto described it as a Jalandhari judiciary, a moral geography rooted in the Punjab’s bureaucratic and judicial establishment that fused social privilege with institutional authority. The phrase stuck because it captured not merely bias, but also the embeddedness of judicial power in regional and class formation.

Claims of independence notwithstanding, judicial activism constrained civilian space. This was evident in the case of then prime minister Yousaf Raza Gillani. Given the context, the establishment of the Federal Constitutional Court appears to be no panacea but an attempt to pluralise constitutional adjudication.

Viewed in this light, the FCC is neither perfect nor complete. Still, it represents strategic advance in Pakistan’s constitutional evolution. It realises a component of the 18th Amendment’s unfinished agenda, embeds federal representation in constitutional adjudication and delineates the boundaries of exceptional authority. The inclusion of military privileges is formally bounded. This makes for a clearer operational framework for the court. By creating a forum where law can mediate conflicts, exercise reasoned judgment and reflect the plural character of the federation, the FCC constitutes a cautiously optimistic step toward stabilising constitutional governance in a historically turbulent polity.

The amendment also embeds exceptional authority. Lifetime recognition for the field marshal and consolidation of the powers of the chief of army staff do not merely honour service; they also codify a zone of extraordinary prerogative. Here, the work of Carl Schmitt and Giorgio Agamben is instructive. Schmitt observed that sovereignty is revealed in the moment of exception: when normal legal order cannot contain crisis, the sovereign decides, suspending the law. Agamben extends this insight, showing how the state of exception can be internalised within a law – a zone where rules and their suspension coexist. In Pakistan, exceptional power is no longer confined to the shadows; it is now visible, bounded and textualised. It can be argued that while codification may constrain excess, it may also normalise a permanent margin where accountability is attenuated.

Pakistan’s judiciary has historically navigated a precarious path between legality and sovereignty. The Doctrine of Necessity, judicial endorsements of coups, and interventions against elected governments reveal a pattern in which courts oscillated between arbiters of law and instruments of power.

Viewed through the lens of hybrid regimes, the amendment is intelligible as a negotiated accommodation between entrenched authority and formalised institutional reform. Hybrid regimes combine formal democratic procedures with informal power structures, often producing negotiated transitions in which concessions and privileges are traded to stabilise governance. Within this framework, the FCC can be read as a procedural advance — a site where provincial representation and deliberation are inscribed — even as exceptional authority is simultaneously legitimised. Such settlements illustrate the delicate balance of transitional democracy: institutional form may coexist with entrenched power.

Legal theory helps illuminate what is at stake beyond procedure. Courts do more than adjudicate; they shape how communities understand justice and themselves. Drawing on agonistic democracy (Chantal Mouffe), we can see the FCC as a structured arena for conflict: it channels disagreement into deliberation rather than leaving it to unmediated coercion. Conflict is not erased but articulated, producing spaces where contestation is institutionalised rather than suppressed. The FCC’s federated composition may thus do the normative work of remaking judicial culture – if appointments and procedures nurture genuine deliberation rather than managed conformity.

The symbolism also matters. The Punjab’s symbolic retreat from judicial dominance, while modest, signals a redistribution of interpretive authority. Such gestures may gradually reshape expectations and institutional culture.

The amendment stages a delicate encounter: codifying exception while institutionalising plural adjudication. It is at once a constraint and a concession, a legal containment of what was informal and a structural compromise born of imperfect conditions. To classify it simplistically as betrayal or breakthrough would flatten the complexities of constitutional politics in a transitional democracy. It may be better regarded as a testing ground: if the FCC establishes robust procedures, transparent appointments and a deliberative ethos, the juridical space it creates could transform enforced bargains into enduring norms. If not, the inscription of exception may calcify into permanent immunity.

Between exception and equity, the path is neither straight nor guaranteed. The 27th Amendment embodies both constraint and possibility: it formalises extraordinary authority even as it introduces a forum that could cultivate pluralism and deliberation. Its promise will only be realised if procedures, appointments and institutional culture enable genuine contestation within law rather than merely channel it into conformity. The democrat must neither denounce the exceptional unthinkingly nor embrace it uncritically. They must insist that law remain the space where power is named, contested and held to account. In a polity long shaped by concentrated authority, the FCC may yet offer a fragile, provisional hope: that even within the constraints of exception, equity can take root, and plural deliberation can be enacted within the formal frame of law.

The writer is a practicing lawyer in Islamabad: @asad.juttah