Najm us Saqib
The evolution of foundational principles such as the rule of law, checks and balances, and individual rights is etched into history — from the Code of Hammurabi and the Roman Constitution to the Magna Carta and, ultimately, the first modern written constitution: that of the United States in 1789. A constitution serves as a nation’s bedrock legal and political document, establishing its fundamental principles and the precedents for its governance.
Some constitutions, like India’s, with over 100 amendments, are rightly called ‘living documents’ for their ability to adapt. Pakistan’s Constitution is undergoing a similar process with its recent 26th and now the proposed 27th Amendment. However, the sheer number of amendments is less significant than their nature and purpose. For context, the US Constitution has been amended only 27 times in over 230 years, while Germany’s Basic Law has seen over 60 amendments since 1949, and Brazil’s 1988 Constitution has already been amended more than 130 times.
Yet, a constitution’s text is meaningless if not upheld. In nations such as North Korea, Syria, and Russia, reports from organisations like Amnesty International and Human Rights Watch reveal a vast chasm between constitutional promise and reality. Pakistan’s own history includes periods where the constitution was entirely suspended, making the process of amendment seem a lesser transgression by comparison.
Amending a constitution is a profound act, distinct from passing ordinary legislation. The process is designed to ensure that changes reflect a broad, lasting consensus, not transient political whims. A survey of global constitutional history reveals that legitimate justifications for amendment typically fall into several key categories. Before embarking on such a significant journey, a government must confront a few fundamental questions:
One: Are substantial changes needed in political powers or governance structures? Such amendments typically rebalance power between government branches or rectify systemic flaws. For instance, the US 22nd Amendment, limiting presidents to two terms, was a direct reaction to Franklin Roosevelt’s four terms. Additionally, new democracies often amend their constitutions to fine-tune the balance of power between the president and parliament.
Two: Has a major shift in societal values and rights occurred? As society evolves, so does its understanding of fundamental rights. The US 19th Amendment, granting women the right to vote, reflected the triumph of the suffrage movement. Similarly, many nations have amended their constitutions to enshrine gender equality, prohibit discrimination, or recognise environmental rights.
Three: Has a need arisen to correct a specific, widely recognised issue? Occasionally, a specific, unforeseen problem emerges. The US 12th Amendment altered the process for electing the president and vice president.
Four: Is the amendment required to formalise a new territory or state? In federal nations, the constitution must be amended to admit new members. The US Constitution, for example, required amendment to grant statehood to Alaska and Hawaii.
Five: Has the country experienced a major crisis or regime change? This is a common catalyst for profound constitutional change, often resulting in an entirely new document. After the Second World War, Japan and Germany adopted new constitutions under Allied supervision to prevent a return to militarism and authoritarianism. Similarly, post-apartheid South Africa adopted an entirely new constitution in 1996 to establish a multiracial democracy.
Six: Is an amendment needed for modernisation or technical updates? Sometimes, constitutional language becomes outdated. The US 21st Amendment, which repealed the Prohibition-era 18th Amendment, is a prime example of correcting an unworkable and unpopular policy.
In short, legitimate constitutional amendments arise from a significant and sustained national consensus to update the document for new realities, correct a flaw, or expand rights. Again, the process is not designed for minor or transient political issues.
Indeed, it is up to the elected representatives to judge whether the proposed 27th Amendment meets these criteria. If the government argues that the proposed amendment addresses any of the above questions, it may spell this out to the nation during the parliamentary debate it has promised to hold.
While some may perceive external pressures or hidden hands, it is ultimately Parliament that must complete this constitutional exercise. The argument that Parliament is being ‘forced’ to act does not absolve it of responsibility. The fact remains: if it proceeds with an amendment that alters the core structure of the constitution or contravenes the public interest, it must bear the full credit — or discredit — for that decision.
Finally, for those who believe constitutional amendments are permanent, history shows they can be overturned. A subsequent amendment can repeal a previous one, as the 21st did to the 18th in the US. Furthermore, a supreme or constitutional court can rule an amendment unconstitutional if it violates the document’s ‘basic structure’, as India’s Supreme Court did in 1975. Ideally, if the 27th Amendment addresses a temporary challenge, it would include a ‘sunset clause’, causing it to expire automatically after a specified period, ensuring it serves as a measured response rather than a permanent alteration.
The writer is a former Ambassador of Pakistan and author of eight books in three languages. He can be reached at najmussaqib1960@msn.com
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