Ghulam Mujtaba Malik<\/p>\n
Pakistan\u2019s Constitution is more than a\u2002legal 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 \u2014 from Turkey, Hungary, and Poland in the 2010s to Mexico and Israel in the 2020s \u2014 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\u2002the Constitution.
\nIn democratic constitutionalism, there is a long-standing debate over the legitimacy of constitutional amendments. Most modern constitutions, including Pakistan\u2019s, 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\u2019s constitutional struggles. Many democratic constitutions contain provisions that are strongly established, meaning that some elements of the Constitution are considered immutable \u2014 immune from amendment through the usual legislative processes.
\nThe 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\u2019s role as a check on governmental power.
\nThe judicial reforms that have emerged in Pakistan\u2019s recent battleground \u2014 particularly those intended to curb the independence of the judiciary \u2014 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\u2019s democratic institutions. This is where Carl Schmitt\u2019s concept of the \u201cinherent limits to constitutional amendment\u201d becomes relevant. Schmitt, known for his critique of liberal constitutionalism, argued that every constitution has a \u201ccore\u201d of fundamental principles that must be protected from ordinary legislative power. In Schmitt\u2019s view, constitutional amendments should not be left to legislative majorities or courts, as they might undermine the core political identity of the state.
\nIn Pakistan\u2019s 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 \u2014 whether from the executive, the military, or the courts themselves.
\n(To be continued)<\/p>\n
The writer is an academic and legal expert, currently pursuing a PhD in Criminal Law at the University of Szeged, Hungary.<\/p>\n
Courtesy<\/p>\n","protected":false},"excerpt":{"rendered":"
Ghulam Mujtaba Malik Pakistan\u2019s Constitution is more than a\u2002legal 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 […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[10],"tags":[13640],"class_list":{"0":"post-477556","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-article","7":"tag-ghulam-mujtaba-malik"},"yoast_head":"\n