very important...pls reply it with refrences

[alee chandio]

Article 238,239 amendment of constitution (Pakistan);

if there is 2/3 majority in parliament they can amend or make any changes in law;

The question was raised from a scholar that "if parliamentarians can change or amend/alter anything in constitution than what if (tomorrow) they amend by 2/3 majority that there is no sovereignty belongs to almighty Allah and the sovereignty belongs to parliament or head of state?"

so can they pass such law or Not, please reply with references

Note: be patient and understand the question...

[Stunner]

Originally Posted by alee chandio

Article 238,239 amendment of constitution (Pakistan);

if there is 2/3 majority in parliament they can amend or make any changes in law;

The question was raised from a scholar that "if parliamentarians can change or amend/alter anything in constitution than what if (tomorrow) they amend by 2/3 majority that there is no sovereignty belongs to almighty Allah and the sovereignty belongs to parliament or head of state?"

so can they pass such law or Not, please reply with references

Note: be patient and understand the question...

Well, it is both possible and also not possible in different scenarios .. For example if majority or almost all people of Pakistan went astray from teachings of God and Islam (God forbid) then if parliament makes such amendment, it will sustain .. As they will have little to do with Islam and its teachings then ..

However, if that is not the case and parliamentarians having even 2/3 majority try to make such an amendment, it will be hindered by an other major constitutional clause that 'no law can be formed which is against the teachings of Islam' .. So the amendment may be curtailed or nullified by the courts .. Also in current Pakistani scenario if parliament tries to amend such a law, it will have to face severe backlash from People and Ulema ..

Hypothetically it is only possible in the first scenario above ..

Regards ..

[shah]

Originally Posted by alee chandio

Article 238,239 amendment of constitution (Pakistan);

if there is 2/3 majority in parliament they can amend or make any changes in law;

The question was raised from a scholar that "if parliamentarians can change or amend/alter anything in constitution than what if (tomorrow) they amend by 2/3 majority that there is no sovereignty belongs to almighty Allah and the sovereignty belongs to parliament or head of state?"

so can they pass such law or Not, please reply with references

Note: be patient and understand the question...

Simple answer to your quite interesting question is "Preamble of constitution" which is Objective Resolution you do know about it ..... and preamble is the soul of constitution and this Very question is mentioned in that about sovereignty of ALLAH and it cannot be changed because to change it they don't have to make amendment rather have to make a new constitution which is not possible in this generation atleast and INSHA ALLAH will never be stay blessed
nice analytical approach keep it up

[alee chandio]

Dear Sir's, Mr.Stunner & Shah

I am agreed with both answers and same were also in my mind which were given to scholar, and he also satisfied but he required a reference or any Ruling that “such amendment which will be in repugnant to the injunction of Islam would not be amended at any cost...”

Your guidance will be highly appreciated. Thanks

[shah]

Originally Posted by alee chandio

Dear Sir's, Mr.Stunner & Shah

I am agreed with both answers and same were also in my mind which were given to scholar, and he also satisfied but he required a reference or any Ruling that “such amendment which will be in repugnant to the injunction of Islam would not be amended at any cost...”

Your guidance will be highly appreciated. Thanks

scholar you are reffering might claim his wisdom on these sections
239(5) No amendment of the Constitution shall be called in question in any court on any ground whatsoever.
239(6) For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of Majlis-e-Shoora to ammend any of the provisions of the Constitution

NOTE:239(6) any of the provision of constitution

now to prove our point
first step you know what preamble says now
2(A)The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly.
means that without this constitution is meaningless and when soul is missing than the constitution is not amended but altered into new one so difference between amendment and alteration should be distinguished Majlis-e-Shoora can amend it but not the soul because in simple words you can change your outlook but not your soul....
to add one more point
and if we suppose that all the disloyals of Islam are gathered in parliament even than they cannot change it because it is unconstitutional act to change preamble without which it is not the constitution of 1973 rather a new one which is impossible in modern statas of society...by the way according to sec6 there is a high treason for unconstitutional amendment or alteration....and again soul cannot be amended stay blessed

[out of place]

It is important to put things into perspective here.
The question is actually about the limits on the powers of Parliament to amend the constitution. It is being said in this thread by my colleagues that it is not possible and cannot happen since it will be tantamount to playing with the soul of the constitution and that the judiciary will strike it down.

In the case of Pakistan, I believe, things are complex because the case law has not been fully developed in this regard.

I want to make two points :

a) Judiciary can strike down an ordinary legislation in Pakistan like it does in most other countries. However, can judiciary strike down an amendment to the constitution is still a moot point. This question was taken up by the courts when the 18th amendment was challenged. However, the superior court only dealt with the aspect of the appointment of judges and left the rest of the points made against 18th amendment to be decided later. (The case is still pending) . In India, as we all know, the courts have come up with the doctrine of basic structure according to which the parliament does not have unlimited powers to amend the constitution and that even with the 2/3 rd majority the parliament cannot amend the basic structure of the constitution(Kesavananda Bharti case-1973). The Indian SC itself identified the features of the basic structure. However, it is only Indian courts ,and in one case a Bangladesh High court, that accept and use this doctrine.
Our courts in Pakistan are yet to decide upon it. In some cases such as mahmood achakzai case and lawyer's forum case, SC did talk about the essential features of the constitution, it is yet to identify them.
So, can Pak SC strike down an amendment is still a moot point and not yet decided.
Nonetheless,as constitutionalists say, the question of the parliament waking up one day to decide anything 'fantastical' doesn't arise because of the same simple old fact: It is eventually not the force of law but that of public opinion which is the real sanction behind any action

b) As far as the Objective resolution (O.R) is concerned, its actual place lies in the preamble and not in the constitution proper where it was inserted by Zia via 2(a). Preamble may be a soul or a guiding light, it is not a substantive part of the constitution and hence not judicable. Which is why Zia felt the need to make it substantive with his notorious 8th amendment. He did so for dubious purposes which will be discussed some other time. Nonetheless, it should be mentioned that the SC in "Hakim khan case and Kaniz fatima case(1992-93) " has already held that O.R should not be used and cannot be used to strike down a legislation and that it is not grundnorm. The same position was perhaps repeated by the SC in its NRO nullification order.

Hope it will help to shed some light...

[AliAsjadBokhari]

well for a layman like me it is "unlawful" to make law according to our Constitution so what else cannot we expect..!!

[alee chandio]

Thanks all friends and seniors who guided well and mostly the efforts of Mr. Shah and Out of place helped me a lot in this regard;

the best sources and references i found it preamble of constitution, and the reference provided by the "Out of place". One thing more i have discovered that is the oath of the president who is final authority to approve the amendment in constitution, in oath he utters such words which are enough to understand, here are given the text of oath of president,

“(In the name of Allah, the most Beneficent, the most Merciful.)

I, (name of person), do solemnly swear that I am a Muslim and believe in the Unity and Oneness of Almighty Allah, the Books of Allah, the Holy Quran being the last of them, the Prophethood of Muhammad (peace be upon him) as the last of the Prophets and that there can be no Prophet after him, the Day of Judgment, and all the requirements and teachings of the Holy Quran and Sunnah:

That I will bear true faith and allegiance to Pakistan;

That, as President of Pakistan, I will discharge my duties, and perform my functions, honestly, to the best of my ability, faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law, and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan:

That I will strive to preserve the Islamic Ideology which is the basis for the creation of Pakistan:

That I will not allow my personal interest to influence my official conduct or my official decisions:

That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan:
That, in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill-will:

And that I will not directly or indirectly communicate or reveal to any person any matter which shall be brought under my consideration or shall become known to me as President of Pakistan, except as may be required for the due discharge of my duties as President.

May Allah Almighty help and guide me (A’meen).”


further more I have gone also on the oath of senate chairman, speaker assembly as well as also members of assembly. it relates and leads the Islamic ideology.