THE countries that have written constitutions function on the principle of trichotomy of powers that clearly delineate and spell out the role of the organs of state which are considered to be its pillars.
For the orderly and smooth functioning of the state it is imperative that these institutions operate within the limits set by the constitution and play their due and supportive role in carrying forward objectives of the state geared to promoting well-being of the people. Any trespassing into each other’s domain is considered disruptive and inimical to the state interests. The countries where such interventions happen remain consigned to perennial instability and chaos.
Pakistan is unfortunate in that its state organs often interfere in each other’s affairs, presenting themselves as self-styled saviours. The judiciary, tasked with safeguarding the constitution, has frequently violated the principles it is meant to uphold. The Supreme Court has delivered verdicts that contravene the constitution and, at times, attempted to reinterpret or even rewrite provisions, despite parliament’s exclusive authority to amend it. The recent verdict on Article 63-A exemplifies such overreach, contributing to the country’s persistent political instability. As Justice Jackson of the US Supreme Court observed, “The apex court is not final because it is infallible, but it is infallible because it is final,” meaning its decisions must be accepted regardless of correctness. Such interventions highlight the dangers of judicial activism exceeding constitutional limits.
To ensure all state institutions operate within the limits prescribed by the constitution, parliamentary oversight is crucial. Parliament, as the architect of the constitution, is the sole authority empowered to amend it and address aberrations or emerging challenges. Articles 239(5–6) explicitly confirm the parliament’s exclusive power to amend the constitution, leaving no room for legitimate dispute. Petitions challenging the 26th and 27th constitutional amendments are, therefore, entirely unconstitutional, and the judiciary’s acceptance of such petitions represents a grave deviation from its role. Doctrines such as “basic structure” and “necessity” are judicial innovations intended to assert supremacy over other state organs, including parliament. These interventions undermine the constitutional balance, foment political controversy and exceed the judiciary’s assigned mandate.
Given these realities, there is no justification for judicial activism that disregards the powers defined by the constitution. For Pakistan’s political stability and the proper functioning of the state, it is imperative that each institution, including the judiciary, confines itself strictly to the responsibilities and limitations prescribed by the constitution. Parliament must remain the ultimate authority for constitutional amendments and oversight, while other state organs perform their duties without overreach. Only by respecting these constitutional boundaries can Pakistan ensure political stability and uphold the integrity of its democratic framework.
To clear any haze in this regard perhaps it would be pertinent to mention the views expressed by Justice Saqib Nisar and Asif Saeed Khosa while giving their verdicts on petitions challenging 18th and 21st constitutional amendments. Justice Saqib Nisar stated “Matters of governance must be decided by the chosen representatives of the people, and should not be left at the “mercy of the collective wisdom of unelected judges”, who “are the least accountable branch in Pakistan. The “basic structure” doctrine, as adopted by the Supreme Court in India, is a vehicle for judicial aggrandizement of power at the expense of the elected representatives of the people”.
Justice Asif Saeed Khosa argued “Even if the preamble and salient features of the Constitution expressed the will of a past generation then why should the Supreme Court hold future generation hostage to it? Surely, if at some future stage the people of this country have a change of heart or mind … then the will of the people will have its way and the aspirations of yore or yesteryears may not be able to shackle it”. The resignation of Supreme Court Judges Syed Mansoor Ali Shah and Justice Athar Minallah in protest against the 27th amendment, in my view, reflects frivolous reasoning and an unwarranted reaction. They claimed they could not uphold their oaths to a constitution they believe no longer exists and described the amendment as an assault on it. Yet, the constitution they swore to uphold was framed and promulgated by parliament—the same body authorized to amend any of its articles without judicial challenge. While I will not delve into their past political affiliations or any indiscretions under the Supreme Judicial Council’s code of conduct, it is evident that their observations in the resignations were misguided. By questioning parliament’s authority to amend the constitution, they undermined the very framework they had sworn to protect. Such actions set a concerning precedent for judicial overreach and misinterpretation of constitutional mandates.
Some detractors of the 27th amendment argue that it subjects the judiciary to executive control and makes constitution-making justice more distant and vulnerable. This is a preposterous notion. How can a constitutional amendment made by parliament, in accordance with the constitution, be deemed unconstitutional? The amendment was not imposed by the executive but reflects the collective wisdom of a parliament representing multiple political parties. Critics seem influenced by the belief that the judiciary can review any constitutional amendment. If people and judges respect the sanctity of the constitution, they have no right to oppose parliament’s amendments. Any contrary view amounts to hypocrisy.
—The writer is contributing columnist, based in Islamabad.
