n the words of AV Dicey, “The constitution is the most fundamental law of a country, the basis on which the social order is founded.” This foundational aspect is what gives constitutions their authority and legitimacy, making them indispensable for the functioning of a democratic society.

Amendments to a constitution should therefore be approached with the utmost care. They should be driven by the need to enhance democratic governance, ensure accountability and reflect the evolving aspirations of the populace. When amendments are enacted hastily, without due deliberation or public engagement, they risk undermining the very principles they are intended to uphold. This concern is particularly pressing in Pakistan, where the proposed 26th Amendment is being opposed by some for allegedly prioritising political expediency over constitutional integrity.

The primary purpose of constitutional amendments is to adapt the foundational legal document to the evolving needs and aspirations of its people. A well-conceived amendment process serves to strengthen democracy by addressing pressing issues that require legal and institutional reform.

One aspect of the debate around the amendment package is the alleged haste with which it is being pursued. The amendment, it has been suggested, has been drafted without thorough consideration of their long-term consequences. Doubts are being raised about the government’s commitment to upholding the sanctity of the constitution. Comparisons have been made to countries like Venezuela, where constitutional reforms have often been used as a tool for consolidating power rather than fostering genuine democratic change.

Going by the draft that has been circulating, the 26th Amendment will change the balance of powers among the three branches of government. It will alter the composition and processes of the Judiciary. It has been said that the establishment of a Federal Constitutional Court, as proposed, will risk undermining judicial independence and transform the Judiciary into an extension of the Executive branch.

This is illuminating in the context of global examples. The US constitution has seen only 27 amendments since its adoption in 1788.An amendment in the US constitution requires a supermajority in both houses of Congress and ratification by three-fourths of the states.

Another concern has been the lack of public engagement. Some of its opponents say a constitution is not merely a legal document; it embodies the collective aspirations of a nation and requires the participation of its citizens in any changes to the social contract. In South Africa, the post-apartheid constitution was agreed upon following an inclusive and participatory process that sought to reflect the diverse voices of the population, ensuring that amendments were rooted in democratic values. Amendments to the constitution without a broad-based debate could lead to perceptions of disenfranchisement and alienation among some segments of the population.

The frequency of amendments has also been highlighted once again. The US constitution has seen only 27 amendments since its adoption in 1788. An amendment in the US sonstitution requires a super-majority in both houses of Congress and ratification by three-fourths of the states.

The implications of this apparent lightness are far-reaching. If amendments are perceived as instruments of political expediency rather than attempts to improve governance, they could erode public trust in democratic institutions. Citizens may then come to view the constitution as a document that serves the interests of the ruling elite rather than a protective shield for their rights and freedoms. This erosion of trust can lead to political instability and disillusionment with the democratic process.

It is also important to consider the potential for legal challenges to the amendments once enacted. The superior judiciary’s response to such legislation is going to be crucial in determining its fate. If the superior courts uphold the amendments despite widespread opposition, the opposition could choose to be dismissive of Judiciary ‘aligned with the executive.’ This could further undermine the rule of law. Conversely, if the Judiciary strikes down an amendment, it could set off a political crisis and exacerbate tensions between various branches of government. Comparisons have been made in this regard to the situation in Turkey, where the superior courts have been increasingly marginalised under President Recep Tayyip Erdo an, raising concerns about the erosion of democratic norms.

It is clear that a thoughtful, inclusive and principled approach to constitutional amendments is essential for the preservation of democracy and the rule of law. Without such an approach, the amendments may serve only to entrench the power of the ruling elite rather than promoting justice, equality and accountability.

The writer is an advocate of High Court, a founding partner at Lex Mercatoria and a visiting teacher at Bahria University’s Law Department. She can be reached at minahil.ali12@yahoo.com