saiyan0321
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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.
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.
