SC urged to invoke Article 184 over 'constitutional package'

Former Supreme Court judge, Justice Wajihuddin Ahmed, has called on the Supreme Court to take cognisance under Article 184(3) of the Constitution over a proposed constitutional amendment that allegedly seeks to undermine the superior judiciary.

As the world marked Democracy Day on September 15, events in Pakistan's capital painted a different picture. The government scrambled to whip up enough support to push a constitutional amendment through both houses of parliament while keeping the actual draft of the amendment under wraps.

The government's cloak-and-dagger approach has raised alarm bells among political observers. Political commentators decried the lack of proper and meaningful debate in parliament, warning that rushing such decisions often creates more problems than it solves, even in the short run.

Speaking to The Express Tribune, Justice Wajihuddin Ahmed stated that it was high time for the courts to take notice of this amendment under Article 184(3) of the Constitution. He said that a constitutional petition could land before the apex court as early as Monday as the amendment did not align with the framework of the Constitution.

Justice Ahmed pointed out two precedents – one during the tenure of former chief justice Sajjad Ali Shah and another under former chief justice Iftikhar Chaudhry. He recalled that during Chaudhry's term, the 18th Amendment was not only stayed but contentious clauses viewed as contrary to the Constitution's basic structure were removed.

Justice Ahmed further cited a settled principle in India, where the judiciary ruled that while parliament had the power to amend the Constitution, it could not alter its basic structure. He stressed that judges were the guardians of the Constitution, and it was within their authority to protect it from distortion.

He warned that the purpose of this amendment was to "harness" the superior judiciary, which remains the last line of defence for the people of Pakistan, as no other institution worked for the benefit of the masses.

It was troubling, he said, that despite the amendment being imminent, only a select few were aware of its contents, a situation that ran contrary to democratic principles.

Political pundit and former caretaker chief minister Hasan Askari also criticised the amendment, calling it a failure of the democratic process. "This constitutional amendment is being pushed through in secrecy, without any broad consensus or meaningful debate in Parliament," he said.

Askari highlighted that not only is there no meaningful debate, but the content of the legislation remains undisclosed. He compared the situation to former prime minister Zulfikar Ali Bhutto's sixth constitutional amendment, which was similarly forced through parliament.

Ahmad Bilal Mehboob added that there should have been an extensive debate in and outside parliament to allow concerned parties to weigh in on the issue. He criticised the rushed nature of the process, stating that it went against the parliamentary norms.

However, he did not view the situation as undemocratic, noting that consensus-building outside parliament was a regular democratic exercise. He also drew a parallel with the 18th Amendment, which was similarly deliberated more outside parliament than within.

Mehboob cautioned that hasty legislation often resulted in significant shortcomings.