Amending Pakistan’s Constitution: Procedure
1. Introduction
The Constitution of Pakistan is considered rigid because it cannot be easily amended. There is a rigid and difficult procedure to amend the Constitution, making it inflexible. Article 238 empowers the Parliament to make amendments, and Article 239 provides the procedure for the amendment. Parliament does not have unlimited powers to make amendments to the Constitution; only the Constitution provides this right to Parliament.
2. Relevant Provisions
Articles 238 and 239.
3. Institution Which Can Make Amendments
Majlis-e-Shoora (Parliament) is empowered to amend the Constitution of the Islamic Republic of Pakistan. A bill for amendment must be passed by two-thirds of the total membership of the Assembly, and then the Senate should pass this bill by a majority of the total membership. The Constitution confers power on Parliament to amend the Constitution.
4. Case Law
Muhammad Bachal Memon v/s Government of Sindh P.L.D 1987 Kar. 296.
It was held that Parliament is the supreme authority to make any amendment in any part of the Constitution. There is no provision in the Constitution which restrains its power in this behalf.
5. Object
The object of introducing provisions for the amendment of the Constitution is to bring it in line with changing conditions and the new demands and needs of the times.
6. Procedure of Amendment
(i) Where Bill to Amend is Originated
A bill to amend the Constitution may originate in either house of Parliament.
(ii) If the Bill is Passed by Two-Third Majority
If the bill has been passed by the votes of not less than two-thirds of the total membership of the house, it shall be transmitted to the other house.
(iii) Bill in Other House
If the bill is passed with an amendment by the votes of not less than two-thirds of the total membership of the house, then it shall be transmitted to the house in which it was originated, and the bill will be passed by two-thirds of its total membership.
(iv) Assent of the President
If the bill is passed by the house, it shall be presented to the President for his assent.
(v) Procedure to Alter the Limit of a Province
A bill to amend the Constitution which would have the effect of altering the limits of a province shall not be presented to the President unless it has been passed by the Provincial Assembly of that province by the votes of not less than two-thirds of its total membership.
7. Limitation
The power of Parliament to amend the Constitution does not extend to altering, repealing, or replacing the Constitution. Any amendment to change the basic structure, framework, and essential features is not permissible under the Constitution.
Case Law: P.L.D 1998 SC 1263
It was held that the powers bestowed upon Parliament by the Constitution do not include the power to destroy or abrogate the Constitution, referred to as its basic structure or essential features.
8. Duties of the Court in Regards to Amendments
The court cannot declare any provision of the Constitution to be invalid or repugnant on the grounds that it goes beyond the mandate given to the Assembly or that it does not fulfill the aspirations of the people. The courts are duty-bound to enforce and interpret the law in accordance with the amendment.
9. Safeguards to the Amendments
No amendment of the Constitution shall be called into question in any court on any ground whatsoever.
10. Conclusion
To conclude, the Constitution of 1973 is not flexible. The procedure of amendment is not easy. Parliament, which consists of the National Assembly and the Senate, can make amendments to the Constitution by a two-thirds majority of its total membership.