could be allowed to establish a private army through a constitutional amendment.
Iftikhar Gillani said that parliament was a representative of the people and it was stronger and more powerful than monarchy.Justice Sarmad Jalal Usmani remarked, “Can a majority party introduce an amendment in the basic constitutional rights while staying in the government?”
Gillani said it should not be done and basic fundamental rights not be touched upon.Justice Usmani observed, “It has been said in the decisions that parliament is more powerful than judges as parliament enacts laws with a majority. What will be done if the Constitution is changed? If parliament undoes Article 2, will we too say that this article is not needed?”
Gillani said the method for distribution of powers among the institutions was enshrined
in the Constitution. In certain countries the basic structure had been recognised partly. Justice Asif remarked, “Different countries have accepted the basic structure in their own way. Situation is different in Pakistan. It has been laid down in articles 239 (5) and 6 that the SC cannot hear the petition.”
Gillani said fundamental rights spelt out in the Constitution were equal.Justice Sarmad remarked, “Fundamental rights all over the world are equal. Question is this that parliament can suspend the fundamental rights. Are the fundamental rights a part of the structure?
Justice Usmani remarked, “Whichever is majority party in parliament, it makes the government. Does it mean that it can suspend the fundamental rights?” Gillani said that the basic structure had been recognised in the Constitution of 33 countries.
Justice Sheikh Azmat remarked it had been said in court’s precedents that basic structure was a political question.Gillani said if Article 239 was not followed, the SC could nullify the amendment.
Justice Khosa remarked, “It has not been determined so far if parliament can make an amendment to what extant and court can declare it void to what extent.”Gillani said the court was entitled to interfere wherever party discipline was breached. Constitutional provisions were there for guidance of parliament. The Constitution would itself deal with whosoever committed a breach of any kind in the Constitution. Court should not leave its mandate nor should it touch upon powers of others.
Justice Mian Saqib Nisar remarked, “Despite restriction, can we declare these amendments null and void or otherwise it should be done under powers of judicial review?”Gillani said, “I will say, we will have to respect global wisdom and accept the powers for making an amendment to the Constitution.”
Justice Asif said that there was another angle that a bill became law and if it became part of Constitution, they were protecting the Constitution. He asked if they could nullify a law which had become a part of the Constitution. Gillani said, “It has been laid down in the Wali Khan case verdict that it is not the mandate of courts to annul the amendments.”