1. Introduction (what is a constitutional amendment?)

Constitution is a legal document for any nation. In a country like Pakistan, where the rules that guide how we are governed require to change with times, understanding how constitutional amendments work is very important. The constitution is like the rulebook for any state that provides a framework for how a country is governed, outlining the rights of citizens and the powers of the government. Sometimes, as society evolves or needs change, it becomes mandatory to update these rules to reflect new values, rights, or circumstances.

An amendment is a change or addition made to a legal document, such as a law or agreement. This can happen at various levels of government such as local, state, or federal and can cover many topics. A constitutional amendment, however, particularly refers to a change to a constitution, which is the main legal basis of a country. It is a change to a country’s basic laws, allowing it to adjust to new needs and unforeseen issues that arise in society. Constitutional amendments usually focus on important principles, the rights of citizens and needs of society. These amendments help ensure that the laws reflect the needs of the people. However, the procedure of making these changes is not easy. It involves managing various challenges that show how hard it can be to balance good governance, individual rights, and the ever-changing demands of society. This explainer will look at the procedures for constitutional amendments in Pakistan, including the procedure, historical context, and current challenges. Moreover, it will cover the steps involved in amending the Constitution and ongoing controversial constitutional amendments that have sparked debate within the political landscape.

Amendments are introduced to address circumstances and events that were not expected when a piece of legislation was initially signed into law.

• An amendment is a change or addition to the terms of an agreement or document.
• An amendment is often an addition or modification that leaves the original document substantially intact.

2. Procedure and Process of constitutional amendment in Pakistan

The Constitution of Pakistan is said to be rigid and flexible at the same time when it comes to amendments. According to the law of Pakistan, constitutional amendments need a two-third majority in both houses (National Assembly and Senate) of parliament. The lower house, called the National Assembly, has 336 seats, while the Senate, the upper house, has 96. The government requires at least 224 votes in the National Assembly and 64 in the Senate to push its package.

Stage I: Proposal of Amendment

Articles 238 and 239 (in Part XI) provide for the amendment procedure in the 1973 Constitution of Pakistan, which is considered a landmark document that established a parliamentary democracy in Pakistan. According to Article 239 (1), A bill to amend the constitution may originate in either house of the parliament.

Stage II: Approval by National Assembly

According to Article 239, an amending Bill can be introduced in either of the two Houses of Parliament. It may originate in the National Assembly and after being passed by 2/3^rd majority of the House, it shall be transmitted to the upper House, the Senate.

Stage III: Approval by senate

According to Article 239 (3), If the bill is approved with amendment by the votes of not less than two-third of the total membership of the house than it shall be transmitted to the house in which it was originated and the bill be passed by two thirds of its total membership.

Stage IV: President’s Approval

If the bill is passed by the National Assembly as well as Senate, it shall be presented to president for his assent. If the Senate approves a Bill but makes changes to it, the National Assembly will review it again. If the Assembly proceeds the amended Bill with at least two-third of its members in favor, it will then be sent to the President for approval.

Stage V: Publication or Implementation of amendment

After presidential approval, the constitutional amendment becomes law and the amendment is published in the official gazette, formalizing it as part of the Constitution. The amendment is then implemented as part of the Constitution, changing the legal or structural framework of the country.

Special Cases: Provincial Consent

If there is an amending Bill associating to the altering of provincial boundaries, then it shall not be presented to the President unless the same Bill has been passed in the relevant Provincial Assembly by the votes of not less than two third of its total membership.

Limitation

Article 239 also implies that no amendment of the Constitution shall be called in question in any court on any ground. It should also be noted that according to this Article, there is no limitation on the power of the Parliament to amend any provisions of the Constitution.

3. Constitutional amendment act and constitutional amendment bill

A constitutional amendment bill is a proposal to substitute, add, or remove parts of Pakistan’s Constitution. It requires a two-third majority in both houses to be approved. At this point, it is just a proposal and not law so far. Once the bill is approved by both houses and signed by the president, it becomes a constitutional amendment act, meaning it is now an official law or ‘Act of Parliament’. The amendments are then added to the Constitution, making the changes sealed.

4. Ongoing debate on Constitutional Package

The highly disputed Constitutional Package is currently being debated in parliament and has not yet been presented for a vote. This package includes a set of proposed changes to the constitution. The coalition government tried to pass this package with over 50 amendments, mainly affecting the judiciary, without prior notice to the members of the National Assembly or Senate.

Salient Features of the proposal include:

• Establishing a new Federal Constitutional Court along with the Supreme Court, which would particularly handle cases related to interpreting constitutional clauses.
• Increasing the retirement age for judges in the new court to 68, compared to 65 for other judges, and limiting their term to a maximum of three years.
• The chief justice of the Constitutional Court would be nominated by the president, based on the prime minister’s recommendations, unlike current Supreme Court appointments, which are made by a Judicial Commission and approved by a parliamentary committee.

5. Analysis

Constitutional amendments in Pakistan are vital for adapting the country’s legal framework to meet societal needs and addressing unexpected challenges. The procedure for amending the constitution is complex and needs broad consensus, reflecting the significance of such changes. While amendments have historically focused on extensive issues, from judicial reforms to provincial rights as seen in the current controversial constitutional package. The ongoing debate on the Constitutional Package centers around proposed changes that could reshape how Pakistan’s judicial system works. One of the key features is the formation of a separate Federal Constitutional Court, which would focus on constitutional issues, alongside the Supreme Court. This package has sparked controversy due to the number of amendments and the aftermath they may have on judicial independence and the balance of powers.