Shaping the nation ۔۔۔۔ Ayman Zafar
“We are masters of the unsaid words, but slaves of those we let slip out.” — Winston Churchill
WORDS have a remarkable power to shape the course of nations. From inspiring movements and transforming policies to influencing public opinion and leaving a permanent mark on culture and society, the impact of words is profound. Our words help us build precious personal relationships and create powerful public ones. It is how we build our communities, instil hope and create a vision for generations to come.
Throughout history, we have witnessed the transformative power of eloquent words. Martin Luther King Jr’s ‘I have a dream’ speech in 1963 stirred the conscience of a nation and set the stage for the civil rights movement, while Gandhi’s words were instrumental in India’s struggle for independence. These speeches didn’t just echo in the moment; they laid the foundation for lasting change. This is the true power of words; they drive nations towards their collective aspirations.
The political sphere is where words become more than just a means of communication; they are wielded as instruments for change. Political leaders, through their speeches, have the power to rally support, redefine policies, and determine the course of a nation. Nowhere is the power of words more evident than in the legal framework of a country. Constitutions, laws, and amendments consist of words that set the rules by which we live (or strive to live). In Pakistan, the Constitution, since its inception in 1973, stands as the most sacred set of words, carrying the weight of the country’s history, governance, and the nation’s future.
The Supreme Court must retain its authority in interpreting the law.
In this respect, Pakistan’s legislative process places great importance on the precise wording of the Constitution, wherein, a single change can open new doors of interpretation or close chapters on long-standing political practices. As a common law jurisdiction, Pakistan relies heavily on judicial interpretation, where centuries of precedent cannot simply be rewritten overnight.
The judiciary plays a crucial role in interpreting these words, ensuring they uphold constitutional principles. This is why the balance of power between the three branches of the state is fundamental in constitutional democracies — it is designed to prevent overreach and preserve justice within the system.
The proposed 26th Amendment to Pakistan’s Constitution, though currently stalled, raises significant concerns over destabilising this delicate balance. While past amendments, such as the 18th Amendment, significantly altered the federal-provincial power dynamics, requiring judicial interpretation to maintain constitutional integrity, the 26th Amendment poses a more profound threat. It strikes at the very heart of the constitutional framework, by undermining the judiciary’s independence and authority.
One of the most alarming aspects is the proposed establishment of a federal constitutional court (FCC), with a chief justice handpicked by the prime minister. This new process outrightly threatens the balance of power by allowing political influence to seep into judicial appointments, which not only crushes the judiciary’s impartiality, but more critically, strips the Supreme Court of its jurisdiction over key constitutional matters, diminishing its role as the final arbiter of such questions.
Perhaps the most troubling provision is the ouster of judicial review — one of the foundations of any constitutional democracy. This amendment would bar any court, including the FCC and the Supreme Court, from challenging constitutional amendments. It
is an unprecedented move that questions the Supreme Court’s authority to defend the basic structure of the Constitution, a principle it has historically defended.
In sum, the proposed 26th Amendment is not a mere legal reform — it is a deliberate attempt to restructure the constitutional framework in a way that weakens the judiciary, politicises judicial appointments, and grants the legislature unchecked authority. It poses a direct assault on the foundational principles of Pakistan’s Constitution, particularly the doctrine of separation of powers, and threatens to pull to pieces the rule of law in Pakistan. The Supreme Court, as the guardian of constitutional principles, must retain its authority and role in interpreting the law.
While the proposed 26th Amendment has failed for now, its very introduction signals a concerning trend in attempts to undermine judicial independence. These efforts could resurface in the future, making it all the more critical for the judiciary, political leaders, and the public to remain vigilant in defending the core constitutional principles that uphold the rule of law in Pakistan.
The writer is a lawyer based in Lahore.
Courtesy Dawn, October 5th, 2024