The failure of the coalition government to get the package of constitutional amendments including some of them related to the judiciary has led to great embarrassment for it and in my considered view it is a self-inflicted retreat. Since very crucial issues were involved it was imperative to have all the stakeholders on board before convening of the National Assembly and Senate session for moving the amendments and having them passed as envisaged.

The way things panned out it became clear that the government had not done its homework before convening the sessions of the legislatures and it was after convening them that the efforts were launched to get Maulan Fazlur Rehman on board contrary to the impression given by the official circles before holding the assembly session that the government had mustered required numbers to get the amendments through in both the houses. Maulana who had assumed the position of centre-stage in this saga played his cards very cleverly ostensibly trying to get the maximum out of this situation for his party.

Though the government was agreeable to some of the demands there were others to which the government could not make an immediate commitment. Maulana stuck to his guns and the whole process has been jeopardized at least for now. My considered view is that the matter has not ended for good. The government will not let the issue die down and would surely re-launch efforts to bring the Maulana on board by making some adjustments to the original draft which reportedly has not been shared with other stakeholders and coalition partners. The slip-shod manner in which the coalition government has handled this issue leaves much to be desired in regards to its taking things for granted and not bringing those stakeholders on board whose support was pivotal to the passage of the amendment package. Whoever led the coalition government into this mess needs to be taken to task.

Since the draft of the proposed amendments has not been made public as yet it is difficult to comment on their necessity and merit. But one thing can be said without any reservation that making amendments to the constitution is the prerogative of the parliament with two-thirds majority as also stipulated in the constitution itself. The amendments made by the parliament cannot be challenged in any court of law. Article 239(5) of the constitution stipulates” No amendment of the constitution shall be called in question in any court on any ground whatsoever”

As is evident the constitution itself provides for making necessary amendments to the constitution in view of the changed political realities and other situations when in the best interest of the state it becomes imperative to redefine the existing legal or political arrangements.

Generally speaking there exists sufficient justification for some constitutional amendments particularly related to the judiciary to curb judicial activism, and delivery of verdicts beyond the constitution which in itself reflect badly on the judiciary. The classic example of the judiciary going beyond its powers and rewriting the constitution which it cannot do under any circumstances is the interpretation of Article 63-A of the constitution. Another example was the putting on hold the passage of the Supreme Court Practices and Procedures Act by the parliament by Atta Bandial court which clearly constituted meddling in the affairs of the parliament as well violation of the constitution. This decision adversely affected political ambiance in the country. Similarly the decision of SC by 8-5 majority on the allocation of reserved seats also is a clear example of a travesty of justice. The interesting thing in this regard is that the verdict was given in favour of the party which was not even a petitioner in the case and to whom the ECP which is another constitution body has not recognized having participated in the election. It was a vivid case of bestowing favours on a particular party rather than doing justice according to the law. It is probably in view of these detestable decisions that the establishment of a constitutional court is being contemplated. This is not something out of the world. Eighty-five countries of the world have constitutional courts to deal with issues related to the constitution.

In view of the foregoing facts and to restore the ascendancy of the parliament and the constitution it is absolutely imperative to bring in judicial reforms which curb and discourage the propensity on the part of judges to play a politically partisan role by pummeling the constitution.

Although it is not yet clear when and how the government will make a second attempt at evolving consensus on the proposed amendments and have them passed by the parliament but some interesting developments have already taken place to thwart any such move. Reportedly a group of lawyers have filed a petition in the SC praying it to set aside the proposed amendments to the constitution sought to be introduced through a bill that would transfer the vested powers of the apex court and high courts to the executive and entirely annihilate the principles of independence of judiciary.

Well, under the prevailing situation, it is a pre-emptive attempt to seek relief on an issue that has not even materialized. Their contentions are also debatable in regard to the impact of the amendments. They petitioners are probably encouraged by the verdict given by the Bandial court on Supreme Courts Practices and Procedures Act. However knowing that it has already been quashed the filing of the petition smacks of ill-intentions clearly designed to sabotage political stability in the country. How can one challenge a thing which may or may not happen? How can the legal minds push the SC to meddle in the domain of the parliament?

Yet another development is the announcement by Hamid Khan a known lawyer and member of PTI to launch lawyers movement against the proposed amendments from 19th of April. In a press conference outside the Supreme Court he said “We reject the constitutional package. The drama running in this country for the last few days is the worst we have seen. They will have to walk over our dead bodies to pass this package from illegitimate form 47 Parliament” It is again a partisan political manoeuvre to add to the political instability in the country. The country needs political stability to winch itself from the quagmire it is stuck into, All the stakeholders particularly the political parties are under the obligation to place the national interests above their narrow political agendas.

Malik Muhammad Ashraf
The writer is a freelance columnist. He can be reached at ashpak10@gmail.com