Ghulam Mujtaba Malik
Pakistan’s Constitution is more than a legal text; it is a battlefield on which the great struggle for power and authority is constantly waged, influencing the fate of democratic governance itself. Over the past several decades, Pakistan stands at a precarious crossroads where its constitutional framework, political integrity, and judicial reforms are all inextricably linked, yet increasingly fractured. The tension between these pillars is not a new phenomenon, but in 2024, it reached a boiling point. Pakistan is the latest in a series of states — from Turkey, Hungary, and Poland in the 2010s to Mexico and Israel in the 2020s — where aspiring authoritarians have sought to use constitutional amendments to dismantle constitutional checks on their authority. To understand this crisis, we must examine not just the amendments themselves, but recognise that in past decades, constitutional amendments in Pakistan have mainly been used as tools to consolidate power by the political elite, with little regard to the ideas enshrined in the Constitution.
In democratic constitutionalism, there is a long-standing debate over the legitimacy of constitutional amendments. Most modern constitutions, including Pakistan’s, recognise the need for amendments to adapt to new circumstances, while in Pakistan, they have increasingly become a tool for power consolidation, posing a direct threat to the democratic process and stability. However, the question arises: Should there be material limits to these amendments, or should they be subject to the will of a supermajority, capable of altering the Constitution as it sees fit? This question is at the heart of Pakistan’s constitutional struggles. Many democratic constitutions contain provisions that are strongly established, meaning that some elements of the Constitution are considered immutable — immune from amendment through the usual legislative processes.
The theory behind such embedded provisions is that certain principles, such as democratic governance and judicial independence, are so fundamental that they cannot be tampered with, even by a supermajority of elected representatives. However, in Pakistan, the absence of such fixed provisions has allowed for regular constitutional amendments that serve the interests of political elites rather than the broader democratic ideals. The Twenty-Sixth Amendment, for example, which was intended to reform judicial appointments, has instead led to a concentration of power in the executive, undermining judicial independence. The executive has, through these amendments, weakened the judiciary’s role as a check on governmental power.
The judicial reforms that have emerged in Pakistan’s recent battleground — particularly those intended to curb the independence of the judiciary — present a paradox for democratic governance. On the one hand, judicial independence is a cornerstone of any democracy, providing a safeguard against the abuse of power by the executive and the legislature. On the other hand, the Pakistani judiciary has repeatedly overstepped its bounds, making politically charged decisions that have destabilised the country’s democratic institutions. This is where Carl Schmitt’s concept of the “inherent limits to constitutional amendment” becomes relevant. Schmitt, known for his critique of liberal constitutionalism, argued that every constitution has a “core” of fundamental principles that must be protected from ordinary legislative power. In Schmitt’s view, constitutional amendments should not be left to legislative majorities or courts, as they might undermine the core political identity of the state.
In Pakistan’s case, the judiciary has often asserted itself as the ultimate guardian of the Constitution, but this has led to instances where judicial decisions were not in line with the democratic principles intended by the Constitution itself. The judicialisation of politics in Pakistan has led to a situation where the courts are seen as both protector and usurper. Thus, judicial reforms in Pakistan are not merely about procedural changes, but about reconceptualising the role of the judiciary in the broader context of democratic legitimacy. Reform should focus on creating a judiciary that is independent yet accountable, and that can operate without political interference — whether from the executive, the military, or the courts themselves.
(To be continued)
The writer is an academic and legal expert, currently pursuing a PhD in Criminal Law at the University of Szeged, Hungary.
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