Understanding Article 239

February 24, 2018

By Asif Mehmood

As we have discussed earlier that PMLN govt has perhaps adopted the policy to criticize the judiciary with malafide intent m now they are doing the same by wrong and flawed interpretations of the provisions of the Constitution.

The writer is a bilingual columnist and a Talk Show host. He can be reached at asifislu@hotmail.com

The writer is a bilingual columnist and a Talk Show host. He can be reached at asifislu@hotmail.com

For example it is being said that the Parliament is supreme and once the Parliament makes any law it cannot be declared as void by any court of law. Through this interpretation they are arguing that supremacy of the parliament is threatened and Parliament must look into this matter. On the face of it this is erroneous argument being presented to misguide the public.

Article 239, clause (5) says: No amendment of the Constitution shall be called in question in any Court on any ground whatsoever.

And Clause (6) provides that:  For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution.]

But this is not the whole truth. One must understand the true spirit of the Constitution through reading some other articles as well. For example Article 8 states:

(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.

Now the question is : whether Article 8 itself is not a limitation on the powers of Majlis e shoora? The answer is YES.

But this is not the sole limitation. There are 4 limitations.

  1. It can’t make law against Quran and Sunnah.
  2. It can’t make any law against fundamental rights.
  3. It can’t make law against the spirit of the Constitution.
  4. It can’t make any law against the basic structure of the constitution.

The concept of judicial review is well established throughout the world. And same power has been exercised by the honorable Supreme Court of Pakistan.