Unconstitutional Constitutional Amendments or Amending the Unamendable?

On 5th August, 2015, the Supreme Court of Pakistan passed what may be the most significant decision in its over 60 years-long history. The case is formally titled District Bar Rawalpindi v. Federation of Pakistan but is referred to in this paper as the ‘Amendments case’. The Amendments case directly addressed the question: is there such a thing as an unconstitutional constitutional amendment in Pakistani law? The opinions of the different Justices on this question were highly divided. This paper analyses and critiques the opinions of three of the Justices to ascertain the position of Pakistani constitutional law on the subject of unconstitutional constitutional amendments; and proposes a separate and limited ground on which the Supreme Court of Pakistan should review a constitutional amendment: where such an amendment frustrates the will of the people from being exercised by the people’s elected representatives.

Zeeshaan Zafar Hashmi holds an LL.M. from Harvard Law School, where he received the Islamic Legal Studies Program Writing Prize and was a Submissions Editor of the Harvard International Law Journal. He also holds an LL.B. from the University of London International Program at Pakistan College of Law. Mr. Hashmi has clerked for the Honourable Chief Justice of Pakistan and currently practices with Salman Akram Raja, Advocate Supreme Court.