The ongoing saga of societal and political crisis that the country is facing, has made the Parliament more active with regards to passing of amendments/legislation. As a result of the 16th December’s attack on Army Public School, the 21st Constitutional Amendment to the Constitution was passed to counter the surge of terrorism in the country. Currently, on the other hand, there is a conflict going on between the ruling party and the opposing parties with regards to the 2013 Elections.
Recently, the Federal Finance Minister, Mr. Ishaq Dar, who currently heads the Parliamentary Committee as well, stated that work on 13 constitutional amendments was underway as part of the electoral reforms agenda. The amendments include, inter alia, redefining the eligibility of Chief Election Commissioner and the members of Election Commission Pakistan (ECP), empowering the ECP to take disciplinary actions against those involved in wrong doing, declaring an election null and void if there are less than 10% women who casted their vote, and verifying the voters through biometric machines.
Since, the major chunk of these reforms are aimed to be conducted through the amendments in Constitution, it is imperative to discuss the amending power of the Parliament under the Constitution. In this regard, Article 238 mandates that an amendment to the Constitution can only be made through an Act of the Parliament (Majlis-e-Shoora). Article 239 lays down the complete procedure relating to the amendment bill, to the extent of its origination, voting on the same, and assent by the President (unless the bill relates to changing the limits of a province, for which, it shall first be presented to the relevant provincial assembly, and then to the President). The same article goes on to say that an amendment of the Constitution cannot be called in question before any court of law on any grounds whatsoever.
Sub-clause (6) of Article 239 makes it very clear that, “There is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution”.
It is pertinent to mention here that unlike India, and many other countries, our superior Courts have denied (not explicitly), the existence of any basic structure to the Constitution, and as a result, no provision of the Constitution has been granted a status that is above the applicability of the amending power of the Parliament.
As a result, it seems that the constitutional power of the Parliament, to amend any provision of the Constitution is absolute, and no challenge can be made to it (under Article 239 (5)), unless it violates the mandatory procedure for passing of a constitutional amendment (under Article 239). As such, there is only one limitation to this amending power, which is the ‘repealing’ or ‘abrogation’ of the Constitution, which is not a same as ‘amending’ the Constitution, as has been decided in the case ofWukula Mahaz Barae Tahffuz-e-Dastoor Vs. Federation of Pakistan (PLD 1998 SC 1263). Other limitations include the violation of principles of Islam, the democratic form of government or the independence judiciary. However, the latter limitations could never curtail the amending power of our sacred Parliament, and history has witnessed it.
No concrete principle has been established by the superior Courts giving absolute amending power to the Parliament. At times, the Courts have favored the absolute power, while on other occasions, they have listed down certain ‘basic’ features of the Constitution which could not be amended even by the Parliament.
Since, there is no concrete judicial pronouncement in this regard, in the ongoing circumstances, it seems that the Parliament has assumed the role of a ‘constituent assembly’, which may, whenever it pleases, amend the provisions of the Constitution. Starting from the 21st Amendment, an amendment passed under the Government’s National Security Policy, and whose validity is yet to be determined by the Supreme Court, the Parliamentary Committee is now proposing amendments in the election related provisions of the Constitution, under their Electoral Reforms Agenda.
To the Parliamentary Committee: although the amending power seems to be absolute under the Constitution, if an amendment is passed that curtails the freedom of independent judiciary, or for that matter, the teachings of Islam, remain assured you are in trouble “in the life herein”, as well as “in the world hereafter”, respectively.
