Can a constitutional amendment be challenged in a court of law (Constitutional bench , full court or any other court) , and does any court have the authority to hear such a petition?
The answer is clear and unambiguous: a constitutional amendment cannot be challenged in any court.
In Chapter 11 of the Constitution, sub-clause 5 of Article 239 provides: “No amendment of the Constitution shall be called in question in any court on any ground whatsoever.”
An exceptional provision is articulated in the Constitution regarding this matter. Subsection 6 delineates:: “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 by way of addition, modification or repeal any of the provisions of the Constitution.”
Should there be any ambiguity even after this explanation in the Constitution? It’s important to remember that during the 25th Constitutional Amendment, Chief Justice Nasir-ul-Mulk held the view that no constitutional amendment can be challenged in any court of law on any ground whatsoever.
Some quarters believe that if Parliament undermines the basic structure of the Constitution through any amendment, the Supreme Court has the authority to annul it. However, the question arises: where in the Constitution is the basic structure defined? Does the Constitution explicitly mention or explain what constitutes its basic structure?
For example, Article 7B of the Constitution of Bangladesh defines the basic structure of the Constitution explicitly. Is there a similar provision in the Constitution of Pakistan?
Can the court, in the name of interpretation, put something in the constitution that is not written by the people’s representatives sitting in the parliament? Can it eliminate anything from the Constitution? Is the court considered a constitutional entity or a supra-constitutional one?
Who creates the Constitution? It is the people, through their representatives. If the representatives of the people wish to add something new to the Constitution, what rules could prevent them from doing so?
Back in 1973, the people made a decision through their representatives. Is there any restriction on amending that decision through the representatives of the people today?
Is there anything written in the Constitution that states that Parliament’s right to amend the Constitution is subject to the judiciary’s permission?
Does the Constitution designate a role for a “Protector of the Constitution” within the Judiciary?
The legislative authority of Parliament is subject to the principles enshrined in the Constitution, which means that legislation may be invalidated if it contravenes constitutional provisions. However the Constitution explicitly states that Parliament possesses the power to amend the Constitution without restraint, provided that such amendments receive a two-thirds majority vote. This requirement for a supermajority represents the only procedural constraint imposed on Parliament regarding constitutional amendments.
Some precedents are being cited to justify that the Supreme Court has the authority to review constitutional amendments and the power to nullify them. The question arises: Can a clear provision of the Constitution be nullified by a judicial decision? If so, is this practice constitutionally valid?
Can any provision of the Constitution be suspended, held in abeyance, or nullified by anyone other than Parliament? This question is important because there have been suspicions within Parliament itself that the Constitution is being “rewritten” by the judiciary rather than by Parliament.
