Pakistan Supreme Court: The 17 Judge Bench of the Court constituted under Nasir-ul-Mulk, C.J., while deciding that whether there are any limitations on the power of the Parliament to amend the Constitution and whether the Courts have the jurisdiction to strike down a constitutional amendment, a majority of 13:4 observed that the Constitution of Islamic Republic of Pakistan contains certain “salient features” like Independence of Judiciary, Federalism, Parliamentary form of government blended with Islamic provisions etc. It was further observed that there are limitations to the power of the Parliament to amend which have been imposed by the Constitution itself. Furthermore it was observed by the majority that, the Supreme Court has the authority to strike down a constitutional amendment if it contravenes the “salient features” enshrined in the Constitution. Furthermore Q.F. Isa, J., laid down certain rules that need to be particularly considered for the interpretation of the Constitution which are as follows-
- The Parliament cannot amend the Constitution in such a way that contravenes the provisions of the Preamble to the Constitution, and that may abolish, take away or abridge the fundamental rights.
- The Constitution has to be read in its entirety and effect has to be given to every clause, paragraph and article.
- The doctrine of separation of powers that is enshrined in the Constitution and the Preamble has to be kept in mind by the Courts while interpreting the constitution.
In the present group of petitions the validity of the 18th and 21st amendment to the Constitution of Pakistan was challenged. Hamid Khan, appearing on behalf of the petitioners contended that there are certain Basic Features of the Constitution that cannot be amended. Referring to the decision of the Supreme Court of India in Kesavanand Bharti v. State of Kerala, (1973) 4 SCC 225, the counsel contended that the Parliament does not have absolute power to amend the Basic structure of the Constitution. On the contrary, Iftikhar Gilani arguing for the respondents contended that the power of the Parliament to amend the Constitution is its ‘constituent power’ without any limitations.
The Court however with the majority of 11:6 dismissed the petitions against the 21st Amendment and the Pakistan Army (Amendment) Act, which mandated the trial of persons accused of terrorist activities before the Military Courts. District Bar Association v. Federation of