Challenging Constitutional Amendments Made by Parliament in Pakistan: The Supreme Court’s View on Article 239(5), Judicial Review, and the Basic Structure Debate

Abstract

This paper examines the Supreme Court of Pakistan’s position regarding the challengeability of constitutional amendments made by Parliament. Article 239(5) of the Constitution provides that no amendment of the Constitution shall be called in question in any court on any ground whatsoever. At first glance, this language appears to exclude all judicial scrutiny; however, the Supreme Court’s jurisprudence reveals a more nuanced position. The Court has consistently affirmed that the Constitution is the supreme law of the land, that the superior judiciary has the duty to interpret and protect it, and that judicial review remains an essential constitutional function. At the same time, the Court has held that a constitutional amendment may be challenged only if it has not been enacted in the manner prescribed by the Constitution itself. The paper also reviews the Court’s treatment of the “basic structure,” “salient features,” and “grundnorm” theories. Although these ideas have been discussed in several judgments, the Court has repeatedly declined to strike down constitutional amendments on the ground that they violate any alleged basic structure.Recent decisions further reaffirm judicial deference to Parliament in the field of constitutional amendment, while preserving judicial power to review unconstitutional laws, executive action, and implementation measures that are ultra vires or void. The paper concludes that, under prevailing Supreme Court doctrine, constitutional amendments are generally insulated from substantive challenge, while procedural infirmity remains justiciable.

Keywords: Article 239(5); constitutional amendment; judicial review; basic structure; salient features; grundnorm; Parliament; ultra vires