Borrowing Institutions, Transforming the Constitution: A Critical Analysis of Constitutional Transplants and the Limits of Constituent Power after Pakistan’s Twenty Seventh Amendment

Abstract

The Twenty Seventh Constitutional Amendment to the Constitution of Pakistan, 1973 introduced essential changes to the country’s constitutional structure, particularly through the establishment of the Federal Constitutional Court. While the Amendment was enacted under Article 239, it raises an important constitutional question: does it only amend the Constitution or does it change the basis of constitutional order? This article analyses the Amendment through the concepts of legal transplant, constitutional transplantation, constitutional transformation and constituent power. Using Alan Watson’s theory of legal transplants, it states that Pakistan should not be viewed as having copied any single foreign constitutional model. Instead, the Federal Constitutional Court represents Pakistan’s adaptation of the broader idea of specialised constitutional adjudication. The article further analyses whether constitutional borrowing can be separated from the political, legal and institutional context in which such institutions originally developed. It also evaluates Parliament’s amendment power under Article 239 and considers whether there are substantive constitutional limits on that power. To assess the constitutional importance of the Amendment, the article proposes a Constitutional Transplant Test based on origin, purpose, receiving context, adaptation, safeguards, redistribution of power and constitutional effect. It summarises that the Twenty Seventh Amendment shows  both constitutional adaptation and constitutional transformation, making it an important development in Pakistan’s developing constitutional framework.