A member of the 17-judge full court hearing petitions challenging the 18th Amendment said on June 2 that the will of the people was above the Constitution and that upholding and protecting that will was the ultimate objective of every organ and functionary of the state.
Quite clearly, the ultimate objective of every organ and functionary of the state, the judiciary included, should indeed be to uphold and protect that will. However, with the utmost of respect, may we say that the Constitution of Pakistan is precisely the embodiment of the will of the people of Pakistan, especially given the manner in which the 1973 Constitution was drawn up and formulated. After becoming president in 1971, Zulfikar Ali Bhutto appointed a 25-member committee comprising members of parliament to draw up a draft of a new constitution for the nation, still reeling from the catastrophe of 1971. On Oct 20, 1972, the draft bill for a new constitution was signed by leaders of all the parliamentary groups. This bill was introduced in the National Assembly on Feb 2, 1973 and on April 19, 1973, it was passed unanimously. The 1973 Constitution, which exists today — in somewhat changed form because of various amendments — came into effect on August 14 of that year.
Further to this, the passage of the 18th amendment was done in a manner that was in accordance with the Constitution, as in it was passed by the required two-thirds majority. In fact, it would be fair to say that this is the only way that the Constitution can be amended – as in by such a majority in parliament – precisely because it represents and embodies the will of the people of Pakistan. Were the present constitution drafted and decreed by, say, a military dictator, or were it mangled and mutilated by one like what General Ziaul Haq during his time with the insertion of the Eighth Amendment, whose purpose was more to shore up his otherwise sham Islamisation claims, it would be fair to say that it did not reflect the will of the people.
Published in the Express Tribune, June 4th, 2010.