The 27th Amendment has been passed by Parliament. Preceding this development there was intense debate on the changes being contemplated in the media, by the legal community, politicians and the parties represented in Parliament. I would not like to repeat what was said except the arguments challenging the powers of Parliament to amend the Constitution.
I honestly reckon that it was a futile debate. Why I call it a futile debate would require a reference to the Constitution itself and the position and powers of Parliament. The Constitution, acknowledging the sovereignty of God over the entire Universe recognizes the people of Pakistan as sovereign within the state of Pakistan in conformity with the limits prescribed by Him and their right to exercise this sovereignty through their chosen representatives, which is Parliament.
The Constitution has been framed by Parliament and in that respect it is the mother of all state institutions created through the Constitution. The Constitution empowers Parliament to amend any article. It has absolute power in this regard as the amendment made by Parliament cannot be challenged in any court of law. Article 239 (5-6) of the Constitution says “No amendment of the constitution shall be called in question in any court on any ground whatsoever. For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (parliament) to amend any of the provisions of the constitution.”
Therefore the judiciary which is regarded as protector of the Constitution and those who believe in its sanctity and unassailable position of Parliament should not question any amendment made by it. Logic and gumption also dictate that all institutions of the state including judiciary need parliamentary oversight to ensure implementation of the will of the people. In recognition of the ascendant position of Parliament, Article 66(1) and 69(1) rightly debar the courts from questioning deliberations of Parliament or anything said by any member of Parliament on the floor of the House.
The amendments in the Constitution are made to cope with the emerging challenges, changed circumstances, constitutional crises and to remove impediments in the smooth functioning of the state. The Article of the constitution authorizing the parliament to amend any provision therefore represents the futuristic vision of the architects of the Constitution.
The perennial political instability in the country is due to the fact that the Constitution has been flouted with impunity. The judiciary is to a great extent responsible for political instability in the country. There is a long list of the judicial decisions that were delivered in violation of the Constitution that created political chaos and crisis in the country. For example, the invention of the doctrine of necessity which the judges used to justify military coups by arrogating the power to amend the Constitution to themselves and then authorizing the dictators to make changes in the Constitution according to their will, was the biggest violation of the Constitution.
The country has also witnessed unchecked judicial activism after the movement for restoration of the judiciary. The Supreme Court under Mr Justice Iftikhar Chaudhry acted more like a popular court, flouting all internationally recognized principles of jurisprudence. It challenged the 18th Amendment clause regarding the appointment of judges and almost forced Parliament to bring another amendment to accommodate its viewpoint in violation of Article 239(5-6) of the Constitution. Some judges have even tried to rewrite the Constitution which they are not authorized to do. The opinion rendered by the Supreme Court on Article 63-A is a horrific example of judicial activism and breach of the constitution. They have done that with impunity.
The judiciary has also been guilty of entertaining petitions challenging constitutional amendments in violation of Article 239 (5-6). It entertained and heard petitions against the 18th and 21st amendments. Although the petitions were rejected by majority decision, it was maintained that The Supreme Court had the power and right to review any amendment. That also constituted violation of Article 239(5-6). Perhaps it is in view of that decision of The Supreme Court that petitions have been filed against the 26th amendment and now the proposed 27th amendment. The ongoing debate is also a consequence of that decision.
The judiciary in its capacity as custodian of the Constitution should have straight away refused to entertain those petitions. By entertaining them the judiciary made the Constitution controversial and encouraged vested interest to continue with their debilitating antics.
Therefore, more than any other institution we need drastic changes in the judiciary which discourage judges from committing unconstitutional indiscretions. In this regard the idea of creating a constitutional court is a step in the right direction.
Regarding other changes, the fact that they have been approved by two-thirds, therefore means nobody should have any objection to them. The proper forum for debate on the proposed amendment is Parliament because it represents the collective will and wisdom of the nation. People can have their own opinions on any issue. All kinds of arguments can be given on any subject but they do not change ground realities. Atheists might have a myriad of arguments in support of their professed lack of faith but the ground reality is that the majority of the world population believes in the existence and unity of God. Similarly people can prefer their own arguments on the merit or otherwise of the constitutional changes but the wisdom of Parliament takes precedence over any argument. It is the exclusive prerogative of Parliament to make necessity-driven changes in the Constitution and even the judiciary cannot entertain petitions against them. That is an irrefutable reality while Article 239 (5-6) remains part of the Constitution.
