INTRODUCTION TO

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.

The bedrock of the British Constitution is … the

Supremacy of the Crown in Parliament.
~Bingham J, R (Jackson) v. Attorney General
BEATING BACK PARLIAMENT: BASIC STRUCTURE
Indian evolution
• Original SC position: Parliament can make any laws it
chooses.
• Golaknath case (1967 AIR 1643): amendments taking
away or abridging fundamental rights can’t be passed.
• Kesavananda case [(1973) 4 SCC 225]: basic
structure of the Constitution cannot be amended, even
via amendment. Lack of confidence in elected reps
deemed ‘unprecedented’ by the chattering class.
• Raj Narain: Allahabad High Court finds Indira guilty
of misuse of state machinery; declares election void.
Indira imposes emergency; immunises election through
39th Amendment. SC strikes it down via basic structure.
 BASIC WHAT CONSTITUTES BASIC IN INDIA?
STRUCTURE
• Supremacy of the
GONE CRAZY Constitution
• Rule of law
• The principle of Separation of
Powers
• The objectives specified in the
Preamble to the Constitution
• Judicial Review
• Federalism (including
financial liberty of states)
• Secularism
• The Sovereign, Democratic,
Republican structure
• Freedom and dignity of the
individual
• Unity and integrity of the
Nation
• The principle of equality,
• The concept of social and economic
justice
• The balance between Fundamental
Rights and Directive Principles
• The Parliamentary system of
government
• The principle of free and fair elections
• Limitations upon the amending power
conferred by Article 368
• Independence of the Judiciary
• Effective access to justice
• Legislation seeking to nullify the
awards made in exercise of the judicial
power of the State by Arbitration
• Welfare state
BASIC STRUCTURE HERE: TORTURED JOURNEY
The Government thus established by the Constitution may
well be described as a Government by the Judges…it is no
doubt true that the judiciary, while interpreting and applying
the law, must surrender itself at the altar of the obvious
constitutional limitations imposed on its general power, but
since the determination of questions relating to those limits
is once again, in the last resort, a matter of the interpretation
of the Constitution, which function is assigned to the
judiciary in our Constitution, the Judges in effect become
judges of the limits of their own jurisdiction, power or
authority. ~A. K. Brohi, Fundamental Laws of Pakistan
PRE-21ST AMENDMENT: WHAT COUNTED AS BASIC STRUCTURE?
‘Salient Features’
Islamic provisions, federalism and parliamentary form of Government and fully securing
independence of judiciary. ~Mahmud Achakzai PLD 1997 SC 426
‘Limited Power’
The power to amend the Constitution is limited and the Court cannot sit silently over the change of
Pakistan from an Islamic Ideological state to a secular state. ~ Wukla Mahaz PLD 1998 SC 1263
‘Basic features’: Halfhearted self-assertion?
The Constitution of Pakistan is the supreme law of the
land and its basic features i.e. independence of
Judiciary, federalism and parliamentary form of
government blended with Islamic Provisions cannot be
altered even by the Parliament. ~ Zafar Ali Shah v. Pervez
Musharraf PLD 2000 SC 869
JUDICIAL PUSHBACK STARTS: 18TH AMENDMENT
Eighteenth Amendment 2-Step
1. The Judicial Commission headed by the CJP, comprising senior judges of the SC (2), Chief
Justices and senior judges of the High Courts (2), the AG (1), Federal and Provincial Law
Ministers (1) and reps of the Federal and Provincial Bar Councils (1), were to nominate judges
for each vacancy.
2. The nominations were then forwarded to the ‘Parliamentary Committee for confirmation. The
PC comprised eight members, four from the NA and four from the Senate, split equally
between the Treasury and Opposition. All names confirmed by the PC were to be forwarded to
the President through the Prime Minister for appointment. ~Saroop Ijaz, LUMS Law
Journal

SC asks parliament to ‘review’ its own amendment

…Deferring to the parliamentary mandate, we would like to refer to the
Parliament for re-consideration, the issue of appointment process of Judges to
the superior courts introduced by Article 175A of the Constitution. ~ Nadeem
Ahmad v. Federation PLD 2010 SC 1165

PARL. COMMITTEE BECOMES RUBBER STAMP POST-19TH AMENDMENT

PASSAGE OF THE 21ST AMENDMENT
Context
• After the APS Peshawar attack on 16 December
2014, Prime Minister Nawaz Sharif moved
parliament with the 21st Amendment to the
Constitution.
• The 21st Amendment created military courts for
a duration of two years, to try ‘jet-black’
terrorists (the two-year ‘sunset clause’ has since
been renewed twice, with the President having
passed two more amendments since).
• The Amendment was challenged before the SC
immediately. Could the SC strike down a
Constitutional amendment?
 WHAT DOES THE CONSTITUTION SAY?

ARTICLE 239
(5) No amendment of the Constitution shall be
called in question in any Court on any ground
whatsoever.

(6) For the removal of doubt, it is hereby

This pro-Parliament declared that there is no limitation whatever
article was ironically on the power of the Majlis-e-Shoora
inserted by the Zia (Parliament) to amend any of the provisions of
regime in 1985, to oust the Constitution.
the SC’s jurisdiction.
DECIDING BASIC STRUCTURE ONCE AND FOR ALL
District Bar Association Rawalpindi v. Federation
The 21st Amendment Case – PLD 2015 SC 401
The dumbest, and most divided, judgment in history

Salient Features Supreme Parliament Yeh Dunya Jhooti Hai

Sheikh Azmat Saeed Nasir-ul-Mulk Dost Muhammad Khan
Anwar Zaheer Jamali Mian Saqib Nisar
Iqbal Hameed-ur-Rehman Military Courts Are Bad

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

✔ Military Courts whatsoever before any Court. ~Mulk CJ

 OPINION II: THE TWO EJAZES

We have jurisdiction to examine the vires of any

amendment and annul it if it impairs, undermines
or alters any of the parts forming the basic
structure of the Constitution
There is nothing in the Constitution (Eighteenth
Amendment) Act, 2010 as could impair,
undermine, or alter any of the parts forming the
Ejaz & Ijaz JJ
basic structure of the Constitution

✔ Basic Structure The Constitution (Twenty First Amendment) Act,

✔ 2015 impairing, undermining and altering the

✗
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.)

The Preamble can, in its existing form, be seen as the

embodiment of the nation's social contract in outline.

✔ Basic Structure Khawaja J

? 18th Amendment (Split)

✗ 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

? 18th Amendment (Split)

✗ 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.

? Basic Structure Dost Muhammad J

✗ 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 (Twenty-first Amendment) Act (Act I of 2015) had failed to protect

or immunize the Pakistan Army (Amendment) Act (Act II of 2015)
Khosa J (now CJ) either from the sway of Article 175 of the Constitution or from
application and enforcement of the fundamental rights guaranteed by

✗
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

✔ Basic Structure the arguments of the Attorney-General and upheld the

Twenty First Amendment, even though it exfacie would clearly impinge on
✔ 18th Amendment the salient feature of judicial independence that the Honourable Judge
himself identified. Military tribunals by definition are headed by military
✔
Military Courts
officers, not Judges, which is a clear usurpation of the judicial function by
the Executive. This once again displays the inherent subjectivity of the
basic structure/salient features doctrine that results in internal
contradictions in the same judgment.’
 STILL DEMOCRATIC?
Kim Scheppele: argues that because of the sheer number of cases of constitutional significance
argued before the Constitutional Courts of Russia and Hungary, the courts are in fact democratic in
nature, and the counter-majoritarian difficulty as articulated in the American context does not apply
in an analysis of the constitutional schemes of post-Soviet Russia and Hungary. The fact that people
can approach these courts without lawyers means that there are few barriers to entry, and the courts
in Russia and Hungry end up deciding regularly on issues that affect the pressing issues of the people.
This analysis applies in the context of Pakistan as well, in view of the arguments elaborated above. -
Hashmi
63A. Disqualification on grounds of defection, etc.-(l) If a member of a Parliamentary Party composed of a
single political party in a House— (a) resigns from membership of his political party or joins another
Parliamentary Party; or
(b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to
which he belongs, in relation to— (i) election of the Prime Minister or the Chief Minister; or (ii) a vote of
confidence or a vote of no-confidence; or (iii) a Money Bill or a Constitution (Amendment) Bill;
He may be declared in writing by the Party Head to have defected from the political party, and the Party
Head may forward a copy of the declaration to the Presiding Officer and the Chief Election Commissioner
and shall similarly forward a copy thereof to the member concerned: Provided that before making the
declaration, the Party Head shall provide such member with an opportunity to show cause as to why such
declaration may not be made against him.
SAID ZAMAN KHAN V. FEDERATION
2017 SCMR 1249

ALL PETITIONS OF CONVICTS (16) REJECTED; DEATH

PENALTY CONFIRMED

- APS PESHAWAR MASSACRE

- PARADE LANE BOMBING
- BANNU JAILBREAK
- ATTACKS ON SWAT LEAS
- ATTACKS ON WAZIRISTAN LEAS