• Thursday, November 14, 2019

Parliament cannot make law conflicting with Constitution: CJP

Discussion in 'Insaf - Justice' started by Kabira, Feb 20, 2018.

  1. saiyan0321

    saiyan0321 SENIOR MEMBER

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    this is where it gets really funny

    Two articles stand for amendment of the constitution. article 238 and 239. Article 239 is procedure so no issue there. The fight comes in 238.

    Article 238 is simply this

    Subject to this part, the constitution may be amended by the act of majlis e shoora.

    the object is that
    introducing provisions for the amendment of the constitution is to bring it in line with the changing conditions and new demands and needs of times which could not have been foreseen by the constitutional makers at the time when the constitution was promulgated.

    you see in ghulam mustafa khan vs pakistan PLD LAH 49

    article 238 clearly signify that there is no limitation whatever on the power of parliament to amend any of the provisions of the constitution....... The clear and inescapable conclusion that can be legitimately drawn from the words "subject to this part" is that there are no restraints on the parliament, for amending the constitution other than what is contained in article 239.
    Parliament thus is vested with the power of constituent assembly to make or umake consitution by amending it through the machinery provided in the constitution.


    Now the issue comes is

    PLD 2015 SC 401

    Constitution of pakistan did not state that the parliament enjoyed supremacy over the constitution itself. in fact quite the contrary was established in that the supremacy of the constitution over all state organs had to be recognized. Parliament was the subordinate instrumentality of the people, created by them to subserve and implement their will. parliament was not supreme as its power to amend the constitution was constrained by limitations which were clear from the reading of the constitution as a whole. such limitations were not only political but subject to judicial review and, as a consequence, the supreme court had the power to strike down a constitutional amendment which transgressed such limits, principles.


    Clause 3 of article 239 states no amendment to the constitution can be called in question in any court on any ground whatsoever... muhammad bachal memon vs government of sindh and 2 others PLD 1987 kar 296

    Clause 6 has laid down in no uncertain terms that there are no fellers whatever on the power of parliament to amend any of the provisions of the constitution. It may, however, be kept in mind that any amendment that has to be effected should be within the broad contours of the objectives and basic features of the policy provided in the preamble and in various articles of the constitution.

    PLD 2015 SC 401 states

    term any court used in the said article did not include the supreme court. Scheme of the constitution was such that it mentioned the supreme court by name when the jurisdiction of the supreme court was to be ousted, but when the constitution did not mention the supreme court, its jurisdiction was not ousted. Article 239.5 thus did not oust the jurisdiction of the supreme court to call in question an amendment made to the constitution by the parliament. Even if an attempt was made to curtail the jurisdiction of the supreme court, it would not be sustainable as the original constitution of pakistan 1973 did not envisage it. Besides article 239.5 has no place in the original constitution of pakistan 1973 and it was subsequently added by a military dictator ( president order no 20 of 1985 second amendment order) to sustain himself in the usurped office of the president....






    WOW... very interesting times... ]

    @M. Sarmad your opinion would be golden here

    @Kaptaan @Joe Shearer would also like to hear what you guys have to say about this legislative superiority battle that has engulfed pakistan. We have interpretations and articles and case laws.
     
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  2. Crystal-Clear

    Crystal-Clear SENIOR MEMBER

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    what if parliament pass the law to kill any one with curly hairs ?
     
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  3. Zibago

    Zibago ELITE MEMBER

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    I would support that :whistle:
     
  4. Crystal-Clear

    Crystal-Clear SENIOR MEMBER

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    daadey will resist .
     
  5. Zibago

    Zibago ELITE MEMBER

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    Wo kon?
     
  6. PakSword

    PakSword PDF THINK TANK: ANALYST

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    If PMLN includes the amendment in its manifesto and its candidates win 2/3rd seats (God forbid) in 2018 elections, they will be able to amend the constitution. However, even then, they will require two third majority in both the houses (National Assembly and Senate).

    I am afraid that they have already started preparations to include it in party's manifesto, and they are also doing massive horse trading in senate elections.

    Even in UK, a PM can't murder someone and then remain on his seat by merely getting vote of confidence..

    Aaj bhai ko crypto main kamaal faida hua hai!

    Kyun bhai @Kabira y

    Ohh I didn't read this statement.. I take my above comment about crypto back.. :lol:
     
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  7. Zibago

    Zibago ELITE MEMBER

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    Save Ghenday ka ghenda bemar hey shayad :D
     
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  8. Sher Shah Awan

    Sher Shah Awan SENIOR MEMBER

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    This assembly was not elected with mandate? What does that even mean? Just because you don't like the party? I am sorry, you guys are not making any sense at all. If a party has 2/3 third majority or is able to get it with co-operation with other parties, there is no reason why they cannot change the constitution. Who invented the law that the 1973 constitution is unchangeable?

    As for fundamental right, define "fundamental rights" of the people. I can already think of several amendments that contravene fundamental rights but Pakistanis seem to be happy with it. This statement and those supporting it just seem to be trying to make political statements.

    Why are you being ridiculous?
     
  9. PakSword

    PakSword PDF THINK TANK: ANALYST

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    Aur bhi 2-chaar miskeen thay.. pata nahi kahan hain aaj kal?
     
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  10. Sher Shah Awan

    Sher Shah Awan SENIOR MEMBER

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    I still don't see the point you guys are making. If Zia Ul Haq, an unelected military ruler can add several amendments, why can't a democratically elected party with 2/3 majority change the constitution?
     
  11. VCheng

    VCheng ELITE MEMBER

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    Any amendments made without due process, such as those by military dictators, are illegal.
     
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  12. PakSword

    PakSword PDF THINK TANK: ANALYST

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    Which amendments were introduced by Zia all alone? There was a parliament in his regime as well.. Remember Junejo?
     
  13. Sher Shah Awan

    Sher Shah Awan SENIOR MEMBER

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    Who is going to divest with amendments introduced by Zia ul Haq? :lol:

    Parliament and Zia ul haq? Just like the Ayub Khan's presidential elections?
     
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  14. VCheng

    VCheng ELITE MEMBER

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    No one. Hence the Pakistani Constitution will remain a grotesquely misshapen tool of convenience for the powerful, to the nation's everlasting loss.
     
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  15. PakSword

    PakSword PDF THINK TANK: ANALYST

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    I mean it was a cartoon parliament, in which NS was also a provincial finance minister.. but there was one.. Every dictator had to bring cartoons into the parliament I suppose, to carryout their desired tasks..