4TH NATIONAL TILS LAHORE LAW

MOOT COURT COMPETITION, 2026

TEAM CODE : 02

BEFORE THE HON’BLE SUPREME COURT OF

ERADONIYA

THE REFORM AND JUSTICE MOVEMENT

(Petitioners)

​ ​ ​ ​ ​ VERSUS

​ THE FEDERATION OF ERADONIYA

(respondents)

MEMORIAL ON THE BEHALF OF RESPONDENTS

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS.................................................................................................. 4
TREATIES, CONVENTIONS AND COMMENTARIES....................................................5
CASES....................................................................................................................................... 5
STATEMENT OF JURISDICTION.......................................................................................7
QUESTIONS PRESENTED....................................................................................................8
SUMMARY OF FACTS.......................................................................................................... 9
SUMMARY OF PLEADINGS.............................................................................................. 11
PLEADINGS...........................................................................................................................13
PRAYER FOR RELIEF........................................................................................................ 34
LIST OF AUTHORITIES

TREATIES AND STATUTES

1.​ ICCPR
2.​ ICJ

CASES

1.​ Al-Jehad Trust

2.​ Nadeem Ahmed v. Federation of Pakistan PLD 2010 SC 116
3.​ Mahmood Khan Achakzai v. Federation (PLD 1997 SC 426)
4.​ Mahmood Khan Achakzai v. Federation (PLD 1997 SC 426)
5.​ Government of Bangladesh and Ors. Vs. Advocate Asaduzzaman Siddiqui and Ors
6.​ District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401)
7.​ Kesavananda Bharati v. State of Kerala (1973)
8.​ Federation of Pakistan v. Durrani Ceramics (2014 SCMR 1630)
9.​ Secretary Ministry of Petroleum and Natural Resources v. Durrani Ceramics (PLD
2015 SC 354)
10.​Kesavananda Bharati v. State of Kerala (1973)
11.​Asma Jillani and State v. Zia-ur-Rahman
12.​Mahmood Khan Achakzai v. Federation (PLD 1997 SC 426)
13.​Anwar Hossain Chowdhury v. Government of Bangladesh (1989)
14.​Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719)
15.​Muhammad Aslam Awan v. Federation of Pakistan

LIST OF RELEVANT LAWS

1.​ Pakistan Penal Code, 1860
2.​ The Constitution of Pakistan,1973
3.​ Code of Criminal Procedure, 1898
4.​ Peaceful Assembly Act, 2024
5.​ Maintenance of Public Order Ordinance, 1960
STATEMENT OF JURISDICTION

Having regard to the Original Jurisdiction of the Supreme Court invoked by the Petitioners
under Article 184(3) of the Constitution of the Republic of Eradoniya, pertaining to the
alleged irregularities of the Parliament in the passing of the Constitution (Twenty-Sixth
Amendment) Act, 2024 and the Impugned Constitutional Amendments being violative of the
basic structure of the Constitution of the Republic of Erodoniya.
ISSUES PRESENTED

[Link] the constitutional petitions challenging the Constitution (Twenty-Sixth

Amendment) Act, 2024 are required to be heard and decided by the Supreme Court sitting as
a Full Court, or whether they may validly be adjudicated by a Constitutional Bench
constituted under the framework introduced by the Twenty-Sixth Amendment itself?

[Link] the Constitution (Twenty-Sixth Amendment) Act, 2024 impermissibly abrogates

the basic structure of the Constitution, including, inter alia, the principles of parliamentary
democracy, judicial independence, and federalism, thereby rendering it as an unconstitutional
constitutional amendment and therefore, liable to be struck down?

Statement of Facts

1.​ Eradoniya is a populous South Asian federal parliamentary republic governed under
the Constitution of 1973, which establishes a democratic system, guarantees
fundamental rights, and vests constitutional adjudication in an independent judiciary.
While the Constitution has been celebrated for its progressive character, Eradoniya’s
political history has been marked by recurring constitutional crises, alternating
civilian and military rule, and persistent tensions between democratic institutions and
executive authority. Rawalabad, the capital, functions as the seat of Parliament, the
Supreme Court, and the federal executive, symbolizing the centralization of
constitutional power.
2.​ The period surrounding the 2024 General Elections was characterized by severe
political instability and widespread allegations of electoral misconduct. These
included pre-election harassment of candidates, withdrawal of the election symbol of
the Reform and Justice Movement (RJM), suspension of internet and mobile services
on polling day, delayed and disputed results, and prolonged non-constitution of
election tribunals. Despite these irregularities, the National Unity Party (NUP) was
declared victorious. Subsequent legislative and administrative measures, including
retrospective amendments to the Elections Act and delays in resolving election
disputes, raised serious concerns regarding electoral integrity, representational
legitimacy, and judicial independence.
3.​ Against this backdrop, the Constitution (Twenty-Sixth Amendment) Act, 2024 was
enacted through narrow supermajorities in both Houses of Parliament,
notwithstanding incomplete parliamentary representation and votes cast in defiance of
party directions. The Amendment restructured the framework for constitutional
adjudication and judicial appointments, leading to departures from seniority
conventions, reconstitution of constitutional benches, and reconsideration of
previously settled matters. Challenges to the Amendment were filed before the
Supreme Court but remained unheard for a prolonged period, even as other
constitutionally sensitive matters were prioritised. Requests by senior judges for a full
court hearing underscored the exceptional constitutional importance of the
Amendment and fueled debate over judicial independence, institutional legitimacy,
and the proper forum for adjudicating challenges that fundamentally reshape the
constitutional order.
 SUMMARY OF ARGUMENTS
I

The Peaceful Assembly Act, 2024 is in direct conflict with constitutional provisions
protecting fundamental rights, particularly Article 8, which declares any law inconsistent
with fundamental rights void. The Act imposes broad and vague restrictions on freedom of
assembly (Article 16) and freedom of speech (Article 19) by requiring mandatory prior
approval, granting unchecked discretion to authorities, and criminalizing peaceful protests. It
further violates freedom of movement (Article 15) by restricting access to public spaces.
Additionally, the Act contravenes Pakistan’s international obligations under the UDHR
(Articles 19 & 20) and ICCPR (Articles 19 & 21), which protect freedom of speech and
peaceful assembly. By imposing disproportionate and arbitrary restrictions, the Act
undermines democratic values, suppresses dissent, and fails the necessity and proportionality
test, rendering it unconstitutional and inconsistent with international human rights standards.
II

The frequent use of Section 144 of the CrPC violates fundamental rights such as freedom of
assembly (Article 16) and freedom of speech (Article 19). Originally introduced during
colonial rule to suppress rebellion, its continued application undermines democratic values
and the principles of the 1973 Constitution. Its use lacks proportionality, as there was no
visible imminent threat, and its enforcement is restrictive and suppressive. Excessive force,
including tear gas and chemical agents, violates the right to life (Article 9) and dignity
(Article 14). The arbitrary arrests of journalists like Amina Farooq without due process
breach the right to a fair trial (Article 13) and protection from arbitrary detention (Article 10).
The imposition of Section 144 is deemed irrational as the protests were peaceful, with no
threat to public safety. Additionally, the economic impact of such measures is severe for a
developing country like Eradoniya, further highlighting the disproportionate nature of this
restriction.

III

The right to a fair trial was violated as the constitutional requirement for a review board in
preventive detention cases was ignored, leading to unlawful detentions of Amina Farooq and
Ahmed Khan beyond the three-month limit. Additionally, authorities failed to communicate
the grounds for detention within 15 days, and detainees were denied legal representation,
restricting their ability to defend themselves. The Maintenance of Public Order (MPO) Act
1960, inherited from British colonial rule, has been misused to suppress political dissent by
allowing warrantless arrests and bypassing judicial oversight. This unchecked authority has
led to abuses, contradicting democratic values by criminalizing peaceful protests. The act
infringes upon fundamental rights, such as dignity, liberty, and freedom of speech, as
guaranteed by the Constitution. International legal standards, including the ICCPR, prohibit
arbitrary detention and emphasize judicial oversight, while global legal precedents highlight
the need for reform. Amending or repealing the MPO Act is necessary to align with
democratic and human rights principles.
ISSUE I

​
I. Whether the constitutional petitions challenging the Constitution (Twenty-Sixth Amendment)
Act, 2024 may validly be heard and decided by a Constitutional Bench constituted under the
Amendment, or whether adjudication by a Full Court is mandatory.

I. NO CONSTITUTIONAL REQUIREMENT FOR A FULL COURT

a.​ Bench Formation Is an Administrative and Institutional Function of the Supreme Court

It is respectfully submitted that the Constitution of the Islamic Republic of Pakistan does not mandate
that every constitutional challenge, including a challenge to a constitutional amendment, must
necessarily be adjudicated by a Full Court. Article 184(3) of the Constitution vests original
jurisdiction in the Supreme Court as an institution and does not prescribe the numerical strength of the
bench exercising such jurisdiction. The deliberate silence of the Constitution on bench strength
reflects the framers’ intent to entrust matters of bench constitution to the internal governance of the
Court.

In Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan1, while examining clause (6)
of Article 63A containing a non-obstante clause, the Supreme Court held in unequivocal terms:

“It has been consistently held by this Court that the question, as to whether a superior Court has
jurisdiction in a particular matter or not, is to be decided by the Court itself. No provision of
whatsoever amplitude can take away the jurisdiction of the superior Courts to examine the above
question… Furthermore, the simpliciter factum that a particular provision of the Constitution
contains a non-obstante clause will not itself be sufficient to deny the jurisdiction of the superior
Courts if the impugned action/order is without jurisdiction, coram non judice or mala fide.”

The same principle was reaffirmed by Raja Afrasiab Khan, J2., who observed:

“There is nothing to suggest that the superior Judiciary is not competent to look into the validity of
the amendment made in the Constitution… This authority of the Judiciary cannot be abridged/ousted
because it is its inherent right/power to do so.”

This settled position was further reinforced in Federation of Pakistan v. Malik Ghulam Mustafa
Khar3 where the Supreme Court held:

“There is a presumption against the ouster of jurisdiction of the Superior Courts and any law which
has the effect of denying access to them has to be narrowly construed… provisions seeking to oust the
jurisdiction of superior Courts are to be construed strictly with a pronounced leaning against ouster.”

1
Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263) para 15
2
Ibid para 07.
3
Federation of Pakistan v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26) para 17
In the present case, following the enactment of the Constitution (Twenty‑Sixth Amendment) Act,
2024, constitutional benches were constituted in accordance with the revised constitutional
framework4. After a prolonged delay of nearly one year, the Supreme Court ultimately constituted an
eight‑member Constitutional Bench to hear the petitions challenging the Amendment5. On the first
date of hearing, the Petitioners renewed their request that the matter be placed before a Full Court6.
Such insistence does not stem from any constitutional mandate, but reflects a preference which cannot
override settled constitutional practice.

II. PRESUMPTION OF CONSTITUTIONALITY VALIDATES BENCHES CONSTITUTED

UNDER THE AMENDMENT

It is a settled principle of constitutional jurisprudence that every statute and constitutional amendment
enjoys a presumption of constitutionality unless and until declared invalid by a competent court. This
presumption binds all organs of the State, including the judiciary.

In District Bar Association, Rawalpindi v. Federation of Pakistan7, Jawwad S. Khawaja, J.

authoritatively held:

“What is good or bad for the people must be left to the elected representatives of the people, subject
only to the limitations imposed by the Constitution.”

Earlier, his Lordship emphasized the doctrine of organic interpretation in the following terms in the
District Bar Association, Rawalpindi v. Federation of Pakistan8 case

“In our jurisprudence, it is by now well settled that the Constitution has to be read organically and
holistically. Individual Articles or clauses of the Constitution, if read in isolation from the rest of the
Constitution, may mislead the reader.”

In the present case, the Constitution (Twenty‑Sixth Amendment) Act, 2024 was passed by both
Houses of Parliament with the requisite two‑thirds majority and received presidential assent on the
same day, thereby becoming part of the Constitution9. Until judicially invalidated, the Amendment
remains fully operative, and the institutional arrangements created thereunder, including the
constitution of Constitutional Benches, continue to enjoy constitutional legitimacy.

III. INSTITUTIONAL CONTINUITY AND AVOIDANCE OF CONSTITUTIONAL VACUUM

The Petitioners’ argument, if accepted, would lead to constitutional paralysis. If benches constituted
under the Amendment are deemed incompetent to adjudicate the Amendment itself, no forum would
remain available to decide the challenge.

4
Agreed facts, para 20
5
Agreed facts, para 26
6
Agreed facts, para 27
7
District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401) para 123
8
Ibid para 13
9
Agreed facts, para 18
In the District Bar Association (Rawalpindi) v Federation of Pakistan10 PLD 2015 SC 401,
Jawwad S. Khawaja, J. observed:

“As Courts and Judges, we are obliged to adhere closely to the Constitution and must avoid being
swayed by unexamined assumptions or get trapped into mechanical deduction from rules with
predetermined meanings.”

His Lordship further held11:

“The powers vested in and exercisable by Courts are not a matter of parliamentary grace or
sufferance, but are granted for the purpose… to protect the people against excesses, inter alia, of
State organs and functionaries.”

The same principle of inherent judicial power to examine ouster clauses was elaborated in Chief
Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan12 (PLD 2010 SC 61),
where this Court held:

“So far, therefore, as this Court is concerned it has never claimed to be above the Constitution… but it
does claim and has always claimed that it has the right to interpret the Constitution and to say what a
particular provision of the Constitution means or does not mean even if that particular provision is a
provision seeking to oust the jurisdiction of this Court.”

The Court further observed:13

“This judicial power is inherent in the Court itself. It flows from the fact that it is a Constitutional
Court and it can only be taken away by abolishing the Court itself.”

Here, despite the prolonged delay in fixing the petitions14, the Supreme Court eventually constituted a
Constitutional Bench to hear the matter15. To decline adjudication on the ground of forum composition
would amount to abdication of the Court’s constitutional role as guardian of the Constitution.

IV. ALLEGATIONS OF BIAS CANNOT DEFEAT A DULY CONSTITUTED BENCH

The Petitioners rely on allegations of institutional strain and controversial appointments. However,
allegations of bias must be supported by cogent and objective material. Mere assertions of
controversy, institutional disagreement, or public debate do not meet the constitutional threshold
required to disqualify a duly constituted bench.

In Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan16,the

Supreme Court, while dealing with objections based on institutional conflict and perceived bias

10
District Bar Association (Rawalpindi) v Federation of Pakistan (PLD 2015 SC 401) para 125
11
Ibid para 43
12
Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan (PLD 2010 SC 61)
para 73
13
Idid para 73
14
Agreed facts, para 23
15
Agreed facts, para 26
16
Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan (PLD 2010 SC 61)
para 76
arising out of the Chief Justice’s own removal proceedings, authoritatively clarified the legal standard
governing allegations of bias.

The Court held:

“It needs to be clearly understood that when the judiciary invalidates a legislative measure or when it
annuls an administrative or an executive act, it did not do so because the judicial power was in any
way superior in degree or dignity to the legislative or the executive power but because it stood
commanded by the people, through the Constitution framed by them, to preserve it and for the
purpose, to enforce compliance thereof.”

The Court further observed17:

“Whenever the judiciary gets confronted with any jurisdiction-curtailing provisions intended to
immunize any legislative or administrative act against judicial scrutiny, the courts treat such
provisions as a departure from the generally prescribed path; view it strictly as an exceptional
deviation from the prescribed rule and move in to discover the precise legislative intent while
carefully balancing it against the sanctity of the Constitution and the rights of the public.”

These findings are directly applicable to the present case. The factual context of PLD 2010 SC 61
involved intense institutional pressure, public controversy, and allegations of partiality directed at the
Supreme Court itself. Notwithstanding these circumstances, the Court categorically rejected the
notion that institutional controversy or perceived strain could, by itself, establish legal bias sufficient
to disable the Court from performing its constitutional function.

Similarly, in District Bar Association, Rawalpindi v. Federation of Pakistan18, the Supreme Court
addressed concerns relating to internal judicial disagreement and public criticism arising during
adjudication of constitutional amendments affecting the judiciary. Jawwad S. Khawaja, J. cautioned
against conflating institutional debate with legal bias, holding:

“There is nothing unusual or exceptional about differences as to constitutional questions cropping up

between constitutional bodies or State functionaries in a democratic dispensation… Differences of
opinion between the constitutional bodies or organs of State cannot be seen as adversarial turf-wars.”
All constitutional bodies and functionaries must have the common aim that the Constitution which
embodies the will of the People is enforced… in letter and in spirit with sincerity by every organ and
functionary of the State.”

The facts of District Bar Association demonstrate that even where sharp internal divisions, public
criticism, and dissenting opinions existed within the Supreme Court, such circumstances were never
treated as giving rise to disqualifying bias. Rather, the Court recognised that institutional disagreement
is inherent to constitutional adjudication and cannot be weaponised to invalidate duly constituted
benches.

Applying these settled principles, the Petitioners’ reliance on institutional strain during the relevant
period19 falls far short of establishing legal bias. No material has been placed on record to demonstrate
personal interest, predisposition, or objective likelihood of prejudice on the part of any member of the

17
Ibid para 77
18
District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401) para 124
19
Agreed facts, para 15&16
Constitutional Bench. In the absence of cogent and objective evidence meeting the strict constitutional
standard, allegations of bias cannot defeat the jurisdiction or legitimacy of a duly constituted bench.​

II. Whether the Constitution (Twenty-Sixth Amendment) Act, 2024 impermissibly

abrogates the basic structure of the Constitution, including, inter alia, the principles of
parliamentary democracy, judicial independence, and federalism, thereby rendering it as
an unconstitutional constitutional amendment and therefore, liable to be struck down?

SUBMISSION 1:

Article 239 Expressly Bars Judicial Review of Constitutional Amendments

It is respectfully submitted that the Constitution of the Islamic Republic of Pakistan vests
plenary and unlimited constituent power in the Majlis-e-Shoora (Parliament) to amend the
Constitution.

Article 239 (5) categorically provides that;

“No amendment of the Constitution shall be called in question in any court on any
ground whatsoever,”

thereby expressly ousting judicial review of constitutional amendments. This position is

further fortified by Article 239 (6), which unequivocally declares, “for the removal of
doubt,” that there exists no limitation whatsoever on Parliament’s power to amend any
provision of the Constitution. The language employed by the framers is clear, deliberate, and
admits of no implied restriction. It also shows that constitutional amendment lies within
legislative competence and is not subject to judicial annulment.

In Al-Jehad Trust, the Supreme Court reiterated that no constitutional provision can be
struck down, even if inconsistent with another; such inconsistencies fall within the
competence of Parliament. 20

In the case of Nadeem Ahmed v. Federation of Pakistan PLD 2010 SC 116, although the
Court heard challenges to the new judicial appointment procedure in the 18th Amendment, it
exercised restraint, avoided a final ruling, and referred the matter back to Parliament for
reconsideration of parts of the 18th Amendment. The Court did not decide whether it could
strike down constitutional amendments but made two recommendations.21

It is further submitted that while the Constitution undoubtedly contains certain foundational
or salient features, nowhere does the constitutional text prescribe that the validity of a

20
Muhammad Imran, ‘Basic Structure Theory – The Case of Pakistan’ (CourtingTheLaw, 4 December 2025)
21
Nadeem Ahmed v. Federation of Pakistan, PLD 2010 SC 1165 (Pak.) (Supreme Court entertained petitions
challenging Article 175A of the Eighteenth Amendment concerning judicial appointments, but exercised
restraint by referring the matter back to Parliament for reconsideration rather than striking down the amendment
itself)
constitutional amendment is contingent upon conformity with an unwritten or judicially
evolved catalogue of such features. In Mahmood Khan Achakzai v. Federation (PLD 1997
SC 426), even though the Court identified federalism, parliamentary democracy, and Islamic
provisions as defining characteristics, it clarified that these features are descriptive of the
Constitution’s character but do not confer authority upon courts to strike down constitutional
amendments.

In the case of the Government of Bangladesh and Ors. Vs. Advocate Asaduzzaman Siddiqui
and Ors, according to Gwyer, C.J,

“A broad and liberal spirit should inspire those whose duty is to interpret the
constitution; but this does not imply that they are free to stretch or pervert the
language of the enactment in the interests of any legal or constitutional theory, or
even for the purposes of supplying omissions or of correcting supposed errors. A
Federal Court will not strengthen, but only derogate from, its position; if it seeks to do
anything but declare the law; but it may rightly reflect that a constitution of
government is a living and organic thing, which of all instruments have the greatest
claim to be construed ut res magis valeat quam pereat i.e. it stands for trying to
construe a law in a way to make sense, rather than to void it. The law should be given
effect rather than be destroyed (1939) FCR 18, 36(39)”

In District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401)

(21st Amendment Case)
Nasir-ul-Mulk CJ, Iqbal hameed-ur-Rehman (held the petitions to be non-maintainable):
Para 69: Thus the powers conferred on this Court under Article 184 (3) of the Constitution
cannot be exercised to strike down any amendment in the Constitution even if it violates any
of the fundamental rights. Such power has not been conferred on the Courts by any other
provision of the Constitution. Rather, clause (5) of Article 239 in no ambiguous terms ousts
the jurisdiction of all Courts to call into question any amendment. It reads:
(5) No amendment of the Constitution shall be called in question in any Court on
any ground whatsoever.
Clause (6) again in different language declares that there are no limitations on the powers of
the parliament to amend any provision of the Constitution. Clause (5) and (6) were
introduced into the Constitution through Presidential Order No. 20 of 1985. Challenge to the
Eighth Amendment as a whole has been rejected in the case of Achakzai. It is the
Constitutional duty of a judge undertaken by him in his Oath of Office to “preserve, protect
and defend the Constitution of the Islamic Republic of Pakistan”. This would obviously
include amendments in the Constitution. No judge, bound by his Oath, can arrogate to
himself jurisdiction which has not been granted or conferred by the Constitution. It is an
accepted principle of construction of statutory and Constitutional law that in case the
language is clear, no outside or extrinsic aid can be brought to determine their meaning.
Reference in this context may be made to the case of Federation of Pakistan v. Durrani
Ceramics (2014 SCMR 1630) and the review order in the same case reported as Federation
of Pakistan through Secretary Ministry of Petroleum and Natural Resources v. Durrani
Ceramics (PLD 2015 SC 354), wherein extrinsic aid was not allowed to be used in
interpretation of the Constitution as the language of the provisions in question were clear and
unambiguous. The language of clause (5) and (6) of Article 238 is clear and engenders no
ambiguity in meaning or interpretation. Courts cannot exercise jurisdiction not vested in it by
the Constitution so as to place any limitation upon the powers of the Parliament to amend the
Constitution. As jurisdiction of the Court has been clearly ousted from reviewing any
amendments made by the Parliament to the Constitution, Courts cannot assume such
jurisdiction upon itself by relying on any academic theories, doctrines or any other means of
construing meaning of the Constitution.
Asif Saeed Khosa, J (held the petitions to be non-maintainable):
Para 20:.....Apart from what has been observed above it must not be ignored that by virtue of
Article 175(2) of the Constitution of Pakistan, 1973 “No Court shall have any jurisdiction
save as is or may be conferred on it by the Constitution or by or under any law” and Article
239(5) of the Constitution mandates that “No amendment of the Constitution shall be called
in question in any court on any ground whatsoever”. It ought to go without saying that a
jurisdiction expressly taken away from a court by the Constitution itself cannot be deemed to
have been conferred upon such court by an academic theory propounded by a foreign
scholar. I find it very difficult to accept that an unambiguous textual ouster of jurisdiction can
be ignored on the basis of nothing but a conceptual argument or statement.

The Constitution, being the supreme law of the land, binds all organs of the State, including
the judiciary, to its express provisions. Consequently, doctrines that are not textually
entrenched cannot be invoked to override or dilute the clear mandate of Article 239.

The Twenty-Sixth Amendment has been enacted strictly in accordance with the procedure
prescribed under Article 239 and therefore enjoys full constitutional legitimacy. To subject
such an amendment to judicial invalidation on the basis of implied limitations would amount
to subordinating the express will of the Constitution to judicial discretion, thereby unsettling
the carefully calibrated separation of [Link] is thus submitted that the impugned
amendment neither violates the Constitution nor can it be struck down on the basis of alleged
abrogation of its salient features.

SUBMISSION II

Pakistan's Constitutional Jurisprudence Rejects the the Basic Structure Theory

It is respectfully submitted that subjecting constitutional amendments to rigid and enforceable

limitations in the form of the basic structure doctrine would substantially erode the principle
of parliamentary sovereignty enshrined in the constitutional framework of the Islamic
Republic of Pakistan. The 1973 Constitution vests the constituent power to amend the
Constitution exclusively in the Majlis-e-Shoora (Parliament) under Article 239. This
amending power is a manifestation of democratic self-governance, enabling Parliament, as
the representative organ of the people, to respond to evolving political, institutional, and
constitutional needs.

If Parliament is permanently bound by indeterminate and judicially defined “basic features,”

its constitutional authority to amend, reform, or recalibrate institutional arrangements
becomes illusory. Such an approach effectively transfers constituent authority from the
elected legislature to the judiciary, thereby transforming judicial review into a form of
judicial veto over constitutional change. This outcome would compromise the democratic
balance envisaged by the Constitution and undermine the principle that constitutional
evolution must primarily occur through representative institutions rather than judicial
intervention.

Kesavananda Bharati v. State of Kerala (1973) is a landmark Supreme Court of India case
that established the Basic Structure Doctrine. A 13-judge bench, in a 7–6 majority, ruled that
while Parliament has wide powers to amend the Constitution under Article 368, it cannot
alter, destroy, or abrogate its fundamental features or basic structure. It is a judicial tool to
protect and preserve the foundation of the Indian Constitution, 1950. It originated to
complement further the idea of exercising restraint upon the constituent power of the
Parliament. 22

Unlike India’s Kesavananda Bharati doctrine, Pakistani courts have consistently rejected the
basic structure doctrine that permits striking down constitutional amendments. The Supreme
Court has repeatedly held that Parliament possesses plenary authority to amend the
Constitution under Articles 238 and 239, and that courts are barred from invalidating such
amendments. Pakistan’s Constitution is regarded as a living document, intended to evolve
with societal needs, and there is no recognized academic or judicial theory of “basic
structure” in Pakistani jurisprudence. From the outset, the Supreme Court has refused to treat
the Objectives Resolution, even after its incorporation as Article 2A, as having sweeping
powers to control, override, or invalidate other constitutional provisions.

The discussion began with attempts to treat the Objectives Resolution as a “grundnorm” in
cases such as Asma Jillani and State v. Zia-ur-Rahman, but the Supreme Court repeatedly
refused to give it superiority over the Constitution. Although the Resolution was later inserted
as Article 2A, the Court, most notably in Hakim Khan, reaffirmed that it cannot invalidate
other constitutional provisions. Judicial consensus remains that constitutional amendment is
exclusively parliament’s function, while courts are confined to ensuring legality in ordinary
legislation and executive actions – the power of Judicial Review.

Although there have been academic and judicial discussions about “salient features” of the
Constitution, Pakistan’s jurisprudence does not establish a binding limit that would allow
courts to strike down constitutional amendments as violating a basic structure.

22
“Harmonising Constitutional Ideals: A Modern Reassessment of the Basic Structure Doctrine” by
Kartikay Agarwal & Harmanjot Kaur.
In Mahmood Khan Achakzai v. Federation (PLD 1997 SC 426), it was established that in
Pakistan there is a consistent view from the very beginning that a provision of the
Constitution cannot be struck down holding that it is violative of any prominent feature,
characteristic or structure of the Constitution. The theory of basic structure has thus
completely been rejected. However, every Constitution has its own characteristics and
features which play an important role in formulating the laws and interpreting the provisions
of the Constitution. Such prominent features are found within the realm of the Constitution. It
does not mean that the Court impliedly accepts the theory of the basic structure of the
Constitution. It has only been referred to illustrate that every Constitution has its own
characteristics.

Article 2A was added to the Constitution of Pakistan (1973), which has made the Objectives
Resolution a substantive part of the Constitution, but to say that it is the basic structure does
not hold force. Prominent characteristics of the Constitution of Pakistan (1973) as reflected in
the Objectives Resolution is Federalism and Parliamentary Form of Government blended
with Islamic provisions.

Unlike the Eighth Amendment that was struck down in Anwar Hossain Chowdhury v.
Government of Bangladesh (1989), where amended Article 100 was held ultra vires for
damaging a basic feature of the Constitution by effectively fragmenting the High Court
Division and creating parallel judicial authorities under the guise of permanent Benches, the
present Twenty-Sixth Amendment does not dismember the judiciary, erode the separation of
powers, or undermine constitutional supremacy. It merely regulates the constitutional
framework in a manner consistent with its foundational structure.23

What is the basic structure of the Constitution is a question of academic nature which cannot
be answered authoritatively with a touch of finality but it can be said that the prominent
characteristics of the Constitution are amply reflected in the Objectives Resolution which is
now substantive part of the Constitution as Article 2A inserted by the Eighth Amendment.

It is not open to the Court to hold that a provision of the Constitution can be struck down on
the ground of its being violative of the Objectives Resolution or of national aspirations or of
higher ethical notions or of philosophical concepts of law or of the basic structure.

In Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719), the Supreme
Court rejected the application of the Indian "Basic Structure Doctrine," ruling that
constitutional amendments cannot be struck down by the judiciary based on "salient
features". The Court emphasized that such amendments are within Parliament's authority, and
remedies are political, not judicial. 24

23
Anwar Hossain Chowdhury v. Government of Bangladesh (8th Amendment Case), Supreme Court of
Bangladesh (1989)
24
Basic Structure Theory – The Case of Pakistan, commentary by Muhammad Imran, Courting The Law (Dec.
4, 2025)
It is therefore submitted that recognition of parliamentary sovereignty within the
constitutional order requires that duly enacted constitutional amendments, passed in
accordance with Article 239, be accorded a strong presumption of validity. The Twenty-Sixth
Amendment represents an exercise of Parliament’s constituent power and cannot be
invalidated merely on the basis that it departs from previously understood institutional
arrangements.

SUBMISSION IV

Effect of Separation of Powers

It is respectfully submitted that the contention that parliamentary participation in judicial

appointments per se violates the principle of separation of powers is misconceived. Even
prior to the enactment of the Twenty-Sixth Amendment, the Constitution, through Article
175-A introduced by the Eighteenth Amendment, expressly incorporated parliamentary
involvement in the judicial appointment process. Under this framework, a Parliamentary
Committee, composed of elected representatives, possessed the authority to confirm or reject
recommendations made by the Judicial Commission of Pakistan, provided such decisions
were taken by a three-fourths majority, with reasons duly recorded and subject to judicial
review.

This historical framework demonstrates that controlled parliamentary oversight has long been
constitutionally sanctioned and regarded as compatible with the independence of the
judiciary. The Twenty-Sixth Amendment does not introduce parliamentary involvement for
the first time, nor does it, by that fact alone, abrogate or impair the basic structure of the
Constitution. Accordingly, the Amendment represents a continuation and evolution of
constitutionally recognized practice rather than a disruption of foundational principles.

In Muhammad Aslam Awan v. Federation of Pakistan, the Court held that judicial
independence flows from the trichotomy of powers, meaning separation of powers defines
the scope of independence, not isolation from other branches. Therefore, Parliament’s
participation in judicial appointments does not violate judicial independence. As
representatives of the people, parliamentarians play a legitimate accountability role in a
constitutional system where the judiciary has at times been criticized for overreach.
Comparative practice also supports this model: in many democracies, including the US,
Canada, and Australia, the executive and legislature are central to judicial appointments,
and in some systems the judiciary has no decisive role. As Robert Stevens observes, “judges
choosing judges is the antithesis of democracy,” underscoring that democratic input in
appointments strengthens, rather than weakens, constitutional balance.25

25
SAHSOL, Nadeem Ahmed v. Federation of Pakistan (case note), SAHSOL – Shaikh Ahmad Hassan School
of Law, Lahore University of Management Sciences (LUMS) (Oct. 31, 2025), discussing the Supreme
Court’s decision in Nadeem Ahmed v. Federation of Pakistan, PLD 2010 SC 1165, and the constitutional
framework for judicial appointments and independence.
Many constitutions globally allow political branches and representative bodies to participate
in judicial appointments and procedural design. Such reforms, even if controversial, do not in
themselves abrogate judicial independence if they ensure procedural safeguards and
transparency. For example in the USA Federal judges (including Supreme Court justices) are
nominated by the President and confirmed by the Senate after public hearings and committee
scrutiny. This dual‑branch involvement increases transparency and democratic legitimacy.

The doctrine of separation of powers in Pakistan does not demand rigid institutional isolation,
but functional independence within a coordinated constitutional system. Parliament
determines the legal and institutional framework of governance, while the judiciary exercises
independent adjudicatory authority within that framework. This allocation of roles is
consistent with the common law constitutional tradition inherited from British governance,
where legislative bodies historically structured judicial institutions without controlling
judicial decision-making, a principle reflected in Dicey’s conception of parliamentary
centrality. Article 175 of the Constitution embodies this balance by permitting the
establishment of courts “by law” while mandating the separation of the judiciary from the
executive. The impugned amendment regulates only the structural composition and forum of
constitutional adjudication; it neither directs judicial outcomes nor impairs decisional
independence. Consequently, it operates within the constitutionally permissible legislative
sphere and does not affect the doctrine of separation of powers.

SUBMISSION V

The Amendment Strengthens Judicial Independence Through Structured

Accountability

Under the 26th Amendment to the Constitution of Pakistan, the check on judges’ competency
is specifically provided in newly inserted clauses 18 and 19 of Article 175A, which require
the Judicial Commission of Pakistan (JCP) to conduct annual performance evaluations of
High Court judges and, if a judge’s performance is found to be inefficient, to grant a period
for improvement; if performance remains unsatisfactory after that period, the JCP must report
the matter to 26the Supreme Judicial Council for further action (including potential removal),
thus promoting accountability within constitutional norms.

The Twenty‑Sixth Amendment’s reforms to judicial appointments do not inherently destroy

judicial independence but instead restructure the process for enhanced representativeness and
accountability within constitutional frameworks. The Chief Justice Pakistan’s Suo Motu
powers are limited in Article 184(3), requiring a three-member panel’s approval to prevent
politically sensitive interventions. These changes mark significant steps toward judicial
accountability.

26
See Pakistan Today, Explainer: What changes do the provisions in the 26th Amendment bring to the
Constitution? (Sept. 18, 2024).
The amendment introduced Article 175A, in which the the Judicial Commission of Pakistan
(JCP) will be composed of the Chief Justice of Pakistan and four senior judges of the
Supreme Court, alongside four members of Parliament including nominees from the National
Assembly and Senate; the Pakistan Bar Council also retains representation on the
Commission, ensuring multi‑stakeholder participation in nominations for the Supreme Court
and high court judges. The amendments introduced to Article 175A essentially alter the
appointment of judicial offices structurally by enhancing the role of the legislative body
known as parliament and political personalities in judicial selection. This change separates
from historically shielded judicial appointment norms which were ruled by or dominated by
senior judges and indicates a desire to make a move to a system that is seen as more public
response.27

Parliament’s Special Parliamentary Committee, consisting of eight members from the

National Assembly and four from the Senate on a proportional basis, will select the Chief
Justice from among the three most senior Supreme Court judges and forward that name to the
Prime Minister, who then advises the President for formal appointment, a procedure
reflective of democratic oversight rather than unchecked executive control. The judiciary
must not be a self-control “judicial organ” above from the supervision of democracy. They
assert that public confidence is enhanced when elected representatives share responsibility
instead of judges exclusively selecting their successors.28The amendment proposes the
establishment of Constitutional Benches composed of eight judges, with equal provincial
representation, two judges from each province, aimed at enhancing inclusivity and addressing
long-standing concerns of smaller provinces regarding equitable participation in
constitutional adjudication.29

This distribution of responsibilities seeks to balance judicial autonomy with parliamentary

involvement in appointments; the Committee itself reflects political legitimacy by including
representation from both government and opposition parties, while the JCP continues to
play a central role in nominating judicial [Link] Amendment also includes provisions
for constitutional benches with judges drawn from all provinces to ensure geographical
diversity and federal representation in adjudicating constitutional matters.

SUBMISSION VI

The Amendment Reinforces the Federal Structure and Expands Democratic

Participation

The Amendment’s design includes equal representation from provinces in constitutional

benches and in judicial appointments, thus engendering federal participation.
27
Muhammad Umar Iqbal and Shah Muhammad Zarkoon, ‘A Critical Analysis of the 26th Amendment to the
Constitution of Pakistan 1973 (2024): Implications for Judicial Independence, Parliamentary Oversight and
Fundamental Rights’(Special Issue, Law) Pakistan’s Multidisciplinary Journal for Arts & Science 1
28
fn.8
29
Richard Benwell and Oonagh Gay, The Separation of Powers (House of Commons Library Standard Note
SN06053, 15 August 2011)
The 26th Constitutional Amendment may be discussed within the context of democratic
theory that focuses on inclusion, participation, and legitimacy. Theorists such as Robert Dahl
emphasize that democracy should grant equal opportunities to citizens to participate in the
process of ruling. The Amendment demonstrates the concept of political inclusion by
extending seats to the recently merged districts of the Khyber Pakhtunkhwa (KP) to address
the historical marginalization of the tribal population by the Frontier Crimes Regulation
(FCR). This transition is a shift towards participatory democratic governance and away from
a colonial style of governance.

In classical federal theory, power sharing of the central government and federating units is
emphasized, together with the equal distribution of resources. The merger of FATA with KP
and the following increase in provincial representation poses significant concerns of
provincial autonomy, fiscal provisions, and the power balance within the federation. The
changes challenge the resilience of the federal system, which has repeatedly failed to strike
the right balance between diversity and unity.

The Amendment guaranteed the political inclusion of citizens of the merged districts that had
hitherto been left out by giving those seats in the Khyber Pakhtunkhwa Assembly. This
aspect reinforces the democratic process, expands the legitimacy of institutions, and
incorporates marginalized voices into decision-making forums.30

30
Sabeehullah, Mian, Tansif Ur Rehman, and Aliya Saeed. “Revisiting the 26th Constitutional
Amendment: Implications for Democracy and Federalism in Pakistan.” Journal of Political Stability
Archive, vol. 3, no. 3, 2025, pp. 1559–1569
 PRAYER FOR RELIEF

In the Light of above submissions, the respondent respectfully submits that:

I.​ this Honourable Court may be pleased to hold that the constitutional petitions
challenging the Constitution (Twenty-Sixth Amendment) Act, 2024 may validly be
heard and decided by a Constitutional Bench constituted under the Amendment. It is
further prayed that the demand for adjudication by a Full Court be declared without
constitutional basis and liable to be rejected. This Honourable Court may also be
pleased to affirm the constitutional legitimacy of benches constituted under the
impugned Amendment and proceed to adjudicate the petitions on merits. Any other
relief deemed just and proper in the circumstances may also be granted.

II.​ Declare that the Constitution (Twenty-Sixth Amendment) Act, 2024 does not
impermissibly abrogate the basic structure of the Constitution and therefore not liable
to be struck down

RESPECTFULLY SUBMITTED,
COUNSELS FOR THE PETITIONERS.