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LEGAL REASONING
CONSTITUTIONAL AMENDMENTS
AND BASIC STRUCTURE
FALL 2019
PARLIAMENTARY SOVEREIGNTY (SUPREMACY)
British Trinity
1. Parliament can make laws concerning anything;
2. No parliament can bind a future parliament;
3. An Act of Parliament cannot be questioned by
the Court.
ARTICLE 239
(5) No amendment of the Constitution shall be
called in question in any Court on any ground
whatsoever.
17
Sarmad Jalal Osmany
Amir Hani Muslim Jawwad S. Khawaja
Gulzar Ahmed Qazi Faez Isa
Umar Ata Bandial Tanha Safr
Mushir Alam The Two Ejazes
Asif Saeed Khosa
Maqbool Baqar Ejaz Afzal Khan
Ijaz Ahmed Chaudhry
OPINION I: PARLIAMENT IS SUPREME
If the courts arrogate to themselves the right of not
merely determining what features are to be regarded as
“basic”, but also the right to alter the content of the
“basic features” from time to time or at any time, the
stage may, I fear, be set for a possible
confrontation between the legislative and
judicial branches. The point, it must be stressed, is
not whether the view of the courts is right or wrong—it
is more basic than that, and is this: who has the right to
amend the Constitution, the elected representatives of
the people, or the appointed judges? ~ Nisar J
Mulk, Nisar, Iqbal JJ
There are no limitations, express or implied on the
✗
powers of the Parliament to amend the Constitution and
Basic Structure the amendments brought about in exercise of such
✔ 18th Amendment power are not liable to be challenged on any ground
✗
18th Amendment parts forming the basic structure of the
Military Courts Constitution is ultra vires. Ejaz Afzal J
OPINION III: MILITARY COURTS ARE BAD
Parliament is not sovereign as its power to amend the Constitution is
constrained by limitations which are clear from the reading of the
Constitution as a whole. Secondly, these limitations are not only political
but are subject to judicial review and, as a consequence, this Court has the
power to strike down a Constitutional amendment which transgresses
these limits.
Article 239: ‘one small cog in the Constitutional machinery and has little
JSK & Qazi Faez Isa significance as a standalone provision.’ (Dubious because Zia
legacy/elephant Rumi parable.)
✗ Military Courts
OPINION III: MILITARY COURTS ARE BAD
Justice Khawaja identifies the Preamble as an expression of
the will of the people, addressing directives/commands to
the executive, legislature and judiciary to act within certain
bounds in accordance with their fiduciary duty towards the
people. According to him, the judiciary must act as a check
JSK & Qazi Faez Isa on the legislature to ensure that the legislature does not
transgress the directives/commands enshrined in the
Preamble.
✔ Basic Structure
✗ Military Courts
OPINION IV: YEH DUNYA JHOOTI HAI
The 18th Constitutional amendment and 19th
Constitutional amendment inserting Article 175A, the 21st
Constitutional amendment inserting a proviso in Article
175 and amendment in the Army Act, 1952, the Pakistan
Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and
the Protection of Pakistan Act, 2014 and all subsequent
amendments, made through ordinary legislation are
declared null and void being unconstitutional and shall be
DMK
deleted from the Constitution as a whole.
✗ 18th Amendment
✗ 19th Amendment
✗ Military Courts
OPINION V: TANHA SAFR
In view of the clear and categorical provisions of…Article
239(5) and (6) of the Constitution I have not felt persuaded to
accept the academic theory of basic features or basic structure
of the Constitution as conferring jurisdiction upon this Court
for striking down an amendment of the Constitution.
(ii) All the Constitution Petitions challenging the Constitution
(Eighteenth Amendment) Act (Act X of 2010) are dismissed.
✗
the Constitution and that the military courts for trial of civilians
Basic Structure constituted or authorized under the Pakistan Army (Amendment) Act
✔
(Act II of 2015) have not been founded on any power conferred by a
18th Amendment Constitutional provision and, therefore, the ratio decidendi of the case
✗
of Sh. Liquat Hussain (supra) is equally applicable to the case in hand
Military Courts rendering the Pakistan Army Amendment unconstitutional.
OPINION VI: MAJORITY
Justice Azmat Saeed essentially accepted the contention of Mr. Abdul Hafeez
Pirzada that the word 'amendment' refers only to progressive changes made
to the Constitution; and that it was open to the Court to strike down
constitutional amendments where they are retrogressive: '...the term
'Amendment' as used in Articles 238 and 239 has a restricted meaning.
Therefore as long as the Amendment has the effect of correcting or
improving the Constitution and not of repealing or abrogating the
Constitution or any of its Salient Feature (sic) or substantively altering the
Azmat J same, it cannot be called into question.’ ~Zeeshaan Zafar Hashmi
✔ Basic Structure Just Sheikh Azmat Saeed held that the Supreme Court can strike down a
constitutional amendment if it violates what he identified as the salient
✔ 18th Amendment features of the Constitution. However, he decided that none of the
✔
Military Courts provisions of the Eighteenth and Twenty First Amendments that were
challenged were violative of these salient features. ~Hashmi
OPINION VI: MAJORITY
‘In dealing with the Twenty First Amendment, Justice Azmat Saeed adopted
similar reasoning as that of Chaudhry Nisar Ali Khan when he presented the
Twenty First Amendment Bill in Parliament, to the effect that Pakistan is in
a state of war with terrorists not limited to the Tehrik-eTaliban Pakistan who
hold nothing back in killing the people of Pakistan on an almost daily basis,
noting that, according to the Attorney-General, '...since 2002 more than
sixteen thousand terrorist attacks have occurred...'88 and that 'in order to
deal with the current situation, an additional tool to counter the situation
has been provided by the way of the questioned Amendments in the
Azmat J Constitution and the Pakistan Army Act.' Justice Azmat Saeed thus accepted