In its broadest meaning, judicial review is the power of the court to review the constitutionality of the laws, as well as executive acts, and, where appropriate, declare them void. It has been traditionally justified by the fact that an unelected judiciary, independent of electoral pressures, is better placed institutionally to preserve constitutional constraints and protect individual rights against the tyranny of the majority.

However, the institution has never passed without opposition. The longest-running strand of criticism is the extension of what has since become commonly referred to as the counter-majoritarian difficulty: that judicial review allows an unelected institution to invalidate the decisions of democratically elected officials, thereby displacing rather than expressing popular will. Participatory objections, that the transfer of constitutional questions out of the political contestation arena deprives democratic participation of vitality, and disagreement-based critiques, which challenge the idea that courts have any superior capacity to resolve highly-contested moral or constitutional questions, are closely related.

Structurally, critics have noted that judicial review risks obliterating the distinction between interpretation and authorship, especially as courts exceed constitutional boundaries to define them. In these situations, the issue is not that courts review the law but that they effectively reconstitute it, which begs the question of whether judicial review, in practice, is a restraint on power or an alternative site of power.

It is on this larger theoretical tension that the Pakistani experience should be situated. In Pakistan, the debate over judicial review has not been limited to ordinary legislation; in fact, it has been most sharply articulated in relation to constitutional amendments. The key issue, whether a constitutional amendment, duly enacted under Article 239, can still be declared unconstitutional, has resulted in one of the most enduring fault lines within the Pakistani constitutional law.

On the one hand, the power of amendment is a plenary power: once Parliament has acted in accordance with the prescribed procedure, the ensuing amendment becomes part of the Constitution and cannot be judicially invalidated, because there is no external referent point to which the Constitution can be referred. On a second, more recent and contentious opinion, the amendments can be considered by the courts with reference to some implicit limitations; in one form or another, as the salient features, or the basic structure, or the commands of the people; although, in the constitutional text, no such restriction is explicitly spelled out.

The discussion is not, however, only of the extent of judicial review, but of the very character of the Constitution itself: whether it is wholly defined by its text and procedure, or whether it entails certain implied principles that are beyond amendment. It is here, at this cross-road, between the text and the implication, between procedural and substantive, that the question of judicial review in Pakistan takes its most debatable and consequential shape.

Simply stated, it assumes that some specific provisions of the Constitution are more constitutional than others, thereby establishing an internal hierarchy that has no constitutional text or doctrine. This strategy is inherently irreconcilable with a written constitution that derives its power from its own processes rather than judicially implied substantive restraints. Before one embarks on the analysis of the case laws, it is important to refer to the imperative and whether the authority of the court to invalidate constitutional amendments is actually an expression of popular will as the principle by which we govern ourselves.

The counter-majoritarian challenge developed by Alexander Bickel argues that judicial review is, in itself, a problem, since an unelected judiciary has the authority to strike down laws enacted by popularly elected officials. This criticism falls within the wider issues of participatory democracy, which holds that placing ultimate decision-making in crucial moral and political disputes in the hands of the judiciary does not allow citizens to govern themselves. Scholarship highlights a critical difference between judicial review; the limited power of disregarding unconstitutional acts when deciding on certain cases, and judicial supremacy, which is the authority to set principles of interpretation that guide all the other political actors. Critics believe that the latter threatens to place the government in the hands of the judges, by seizing the constituent power of the legislature and imposing society as a hostage to the despotism of time in unamendable constitutional dogmas.

On the other hand, the best defense of judicial review is the insulation argument, which asserts that a judicial system not subject to popular vote is better placed to defend individual rights and redress democratic malpractices. From a professional security and institutional standpoint that puts forward rights-claims, judges can set aside potentially oppressive social opinion to protect the equality of all citizens. This insulation can enable the judiciary to play a corrective role in areas where elected officials have a conflict of interest by default, like laws on term limits, campaign finance, or gerrymandering.

This defense, however, has serious limitations, as the standards applied in the exercise of such power are subjective and uncertain. For example, the doctrine of the basic structure is said to rest on individual judges’ personal inclinations, which creates an elastic list of inadmissible characteristics that may yield arbitrary rules and internal inconsistencies. Moreover, although the thesis of Bickel is often mentioned as an argument against the institution, it has been observed that Bickel actually defended the institution by proposing so-called passive virtues; methods of not acting (such as following standing or the political question doctrine) to enable the court to evade becoming supreme, without losing its vital functions.

Lastly, procedural arguments against judicial review usually make a series of idealized core case assumptions, of a perfectly informed, rights-respecting citizenry, which are inaccurate in the empirical realities of contemporary democratic societies.¹

Bickel’s tool for depoliticizing the Court carried quite a different emphasis; an emphasis on abstinence rather than abdication.² The desire for depoliticization operates on two distinct levels. On one level, it is an anguished plea for the self-restraint which ought to animate a formally undemocratic institution. On another, it shows an outraged feeling that it is the unworthy who control the discipline; an aesthetic and intellectual cry of coeur against the confusion of law with politics. But this desire is, from a historical perspective, somewhat surprising, for the Supreme Court has always played a double-faceted role: a role both political and legal. In cases displaying social tension and constitutional ambiguity, it is inevitably a political body, and it is this political fact that some critics and some politicians are determined to expel, producing, in the process, the very misreading of Bickel. Bickel accepted unreservedly that the Supreme Court possessed the power of judicial review; what animated his entire thesis was the question of how that power should be exercised, not whether it should exist. But Bikcel’s thesis is not the point of concern here, and it is not the premise on which Pakistani constitutional jurisprudence proceeds.

The Court has determined in Fauji Foundation v. Shamim ur Rehman³, reiterated in Ghulam Mustafa Khar v. Federation of Pakistan, and conclusively stated in Pakistan Lawyers Forum v. Federation of Pakistan, is not that a court has any restraint in considering constitutional amendments, but that there is no power of review whatever. Courts cannot judge the Constitution; they derive their power from it. Bickel’s passive virtue is based on a court that can act but is wise enough to abstain; Pakistani constitutional jurisprudence closes the question of anteriority out of hand. The Petitioners have thus sought shelter in a doctrine that, even on its own terms, would not assist them; and which, in the Pakistani constitutional context, has no foothold whatsoever.

The court in Fauji Foundation held that “[a]mendment power unless, it is restricted, can amend, vary, modify, or repeal any provision of the Constitution.’’ The court held further that “no provision of the Constitution can be ultra vires, because there is no touchstone outside the Constitution by which the validity of a provision of the Constitution can be judged.”

The Settled Pakistani Position

In Ghulam Mustafa Khar v. Pakistan⁴, the judiciary was once again told to have no power to strike down constitutional clauses, and that they acted under the Constitution. The court held that “[t]he Courts derive their powers from the Constitution and function under it. They cannot strike down any provision of the Constitution, but rather enforce and interpret it in such a manner so that all provisions may co-exist harmoniously in the constitutional framework. The Courts cannot declare any provision of the Constitution to be invalid or repugnant on the ground that it goes beyond the mandate given to the Assembly concerned or it does not fulfil the aspirations or objectives of the people.” Thus, they are given the authority to interpret and apply the provisions in the constitution in a harmonious manner, not to invalidate them on the grounds that they go beyond the legislative mandate or do not reflect the perceived popular aspirations. The judicial review would not be applicable to strike down the Constitution, where the courts derive their legitimacy.

Achakzai: Much Ado About Obiter

The principal reliance on Mahmood Khan Achakzai v. Federation of Pakistan⁵ as an endorsement of the basic structure doctrine is misconceived. Though the judgment does refer to salient features of the Constitution, it specifically recognizes that the basic structure is not referred to in the 1973 Constitution and that any such features will be merely reflected by a reading of the Objectives Resolution and by other features. As held by the Court in the aforementioned case: “eighth Amendment does not affect the basic structure of the Constitution because there is no basic structure in the Constitution of 1973 and salient features or special characteristics are mentioned in the Objectives Resolution which remained Preamble to all the four Constitutions promulgated in Pakistan. Objectives Resolution is harbinger to and beacon light of Constitution reflecting hopes and aspiration of people, who created Pakistan after sacrifices and insurmountable hardships and laid down guideline as to how they wanted to be governed. Objectives Resolution now is incorporated in the Constitution of 1973 by the Eighth Amendment as Article 2A which is now substantive part of the Constitution. Salient features and basic characteristics of the Objectives Resolution are federalism; parliamentary democracy and Islamic provisions including independence of judiciary. Article 239 in the Constitution provides for amendment to the Constitution to be made in the manner prescribed therein. The only clog in clause (4) of this Article is that if amendment requires alterations in the limits of a Province then such amendment cannot be presented to the President for assent unless it has been passed by Provincial Assembly of that Province by the votes of not less than two-thirds of its total membership. Article 239 cannot be interpreted so liberally to say that it is open-ended provision without any limits under which any amendment under the sun of whatever nature can be made to provide for any other system of governance, for example, monarchy or secular, which is not contemplated by the Objectives Resolution. Clause (6) of Article 239 provides for removal of doubt that there is no limitation whatsoever on the power of Parliament to amend any provision/provisions of the Constitution. It therefore, follows that Parliament has full freedom to make any amendment in the Constitution as long as salient features and basic characteristics of the Constitution providing for Federalism, Parliamentary Democracy and Islamic provisions are untouched and are allowed to remain intact as they are.”

However, to interpret this language as judicial acceptance of a binding basic structure doctrine would be erroneous. The judgment nowhere asserts that a constitutional amendment violating such features could be struck down by the courts.

This misconception was clarified by Justice Irshad Hassan Khan in Wukala Mahaz v. Federation of Pakistan⁶. J. Irshad was a signatory to the Achakzai judgment, reproduced the short order, and observed that the question of what constitutes the basic structure is academic in nature and has never been answered. He argued that the judgment, when viewed in its entirety, stops short of establishing the basic structure theory as a binding legal constraint on Parliament’s power under Article 239.

The infirmity in Mahmood Khan Achakzai is not confined to its short order alone. Justice Saqib Nisar, writing in the District Bar Association⁷, meticulously analyzed the judgment and demonstrated that the Chief Justice’s opinion was signed by only one other judge. Several judges merely concurred in the result, while Justice Saleem Akhtar expressly rejected the notion that salient features restrict Parliament’s power to amend the Constitution. On this basis, Justice Saqib Nisar concluded that Mahmood Khan Achakzai contains no legal doctrine justifying the adoption of the salient features theory as a substantive limitation akin to the Indian basic structure doctrine. He held that “the extent to which [CJ Shah’s] view was shared by the other judges is also clear. The judgment of Sajjad Ali Shah,CJ is signed by one other judge, namely Fazal Ellahi Khan, J. Zia Mehmood Mirza, J. only agreed with the conclusion arrived at in the judgment, namely, that the appeals and petitions should be dismissed and stated he would record his reasons separately. Irshad Hassan Khan and Munawar Mirza, JJ., added brief notes agreeing with the judgment proposed by the learned Chief Justice but also with that of Saleem Akhtar, J. although in fact, Saleem Akhtar, J. did not accept the theory of salient features as being a restriction on the powers of Parliament.”

Based on this, the judge concludes that “…the judgment in this case contains no legal justification or legal doctrine whatsoever for adopting the theory of salient features as having virtually the same effect as the basic structure theory which was discussed at length and then rejected. As observed earlier the observations relating to salient features were by no means necessary for the decision of the case [which was to uphold the eighth amendment] and thus should at best be treated as obiter dicta. It is also interesting to note that the salient features noted by the learned Chief Justice did not include the independence of the judiciary, which further indicates that the observations made in this behalf were neither fully developed nor intended to be more than obiter dicta.” The observations regarding salient features were unnecessary for deciding the case, which ultimately upheld the Eighth Amendment, and therefore constitute obiter dicta at best.

As Mahmood Khan Achakzai’s examination indicates, the ruling is not in favor of the binding basic structure doctrine in Pakistan. Though it cites relevant characteristics of the Constitution, these citations were incidental and unnecessary to the ruling, which affirmed the Eighth Amendment. The decision was divided, with few judges agreeing with the Chief Justice; the rest either agreed with the outcome or openly stated they did not see any restriction on Parliament’s amending power. Subsequent explanations by Justice Irshad Hassan Khan and the analysis by Justice Saqib Nisar affirm that the basic structure concept in Pakistan is an academic concept that has never been used as a legal restraint. Simply put, the references to salient features in the case are obiter dicta and do not create a doctrine akin to India’s basic structure theory. Notably, even in those obiter remarks, the judicial independence was not found to be a conspicuous quality of the Constitution. The doctrine of the basic structure, as purportedly based on the Objectives Resolution, is also unsuccessful in light of settled jurisprudence. In Khurshid Bhinder, the Supreme Court has consistently held that the Objectives Resolution, even after incorporation as Article 2A, does not have a supra-constitutional status and cannot be applied to test or invalidate any provision of the Constitution.

Moving on, the Supreme Court in Wukala Mahaz⁸ further emphasized that it was not necessary to determine whether the basic structure doctrine applies in Pakistan, as the impugned provision in that case did not violate the alleged structures highlighted before the Court. This cautious, restrained approach underscores the judiciary’s consistent reluctance to constitutionalize the doctrine as a ground of invalidation. The reliance on Zafar Ali Shah v. General Pervez Musharraf ⁹ is equally misplaced. Although paragraph 281 contains language suggesting that basic features cannot be altered, the context of the judgment is decisive. As explained by Chief Justice Nasir-ul-Mulk in the District Bar Association, the observations in Zafar Ali Shah were made in the context of conferring limited amendment powers upon a military ruler, not Parliament, and were intended as vague restraints on extra-constitutional authority rather than judicially enforceable limits on parliamentary amendments. Justice Saqib Nisar further criticized Zafar Ali Shah for conferring amendment powers on a military dictator without a constitutional basis, observing that the purported limitations imposed were so vague as to be virtually meaningless. He also noted that these observations were made without any serious engagement with the doctrine of separation of powers and cannot be treated as authoritative precedent for striking down constitutional amendments.

The position was decisively reaffirmed in Pakistan Lawyers Forum v. Federation of Pakistan¹⁰, where the Supreme Court unequivocally refused to accept the argument that constitutional amendments could be set aside on the touchstone of basic structure. After surveying Mahmood Khan Achakzai and Zafar Ali Shah, the Court held that, for nearly three decades, settled law in Pakistan has been that, while salient features may be identified descriptively, no constitutional amendment can be struck down for violating them. The Court in Pakistan Lawyers Forum further held that constitutional amendments raise political questions, the remedy for which lies in the political process, not in judicial intervention. The appeal in such cases is to the electorate, not the courts. In rejecting the Indian position adopted in Kesavananda Bharati, which in its very essence was a plurality opinion¹¹, the Court emphasized that Pakistan’s constitutional history is distinct and does not warrant the uncritical transplantation of foreign doctrines.

The Perils of Borrowing

Before proceeding further, it is important to examine Indian jurisprudence in this regard, with particular focus on the Kesavananda Bharati case. It must be noted, as held by J. Saqib Nisar in DBA, that “it is a part of the constitutional law of India. The basic featuresǁ doctrine has been propounded at length and applied by the Indian Supreme Court in a number of cases, including in particular, the foundational case of Kesavananda Bharati v State of Kerala AIR 1973 SC 1461. This case was decided by the slenderest of majorities, 7:6, so that, in effect, one Judge‘s view was decisive of this critically important constitutional issue. The Government of India indeed made an unsuccessful attempt to have the matter reviewed. A review bench was constituted and the matter taken up but was not allowed to continue till fruition. Thus the judgment remains intact. All subsequent decisions of the Indian Supreme Court, re-affirming and (as will be seen) expanding the doctrine were given by benches comprising of a lesser number of Judges (usually not more than 5) who were bound by the previous decision of the 13-member bench, leading to the somewhat paradoxical result that one Judge‘s opinion (which incidentally, as will be seen later, differed in almost all important respects with the judgments of the other six judges in the majority) has reshaped the constitutional map of India in a decisive manner. This simple fact should make us think very hard before venturing down that thorny path.”¹² An analysis of Kesavananda Bharati shows that the basic structure doctrine, though now authoritative in Indian law, rests on a fragmented and narrowly decided judgment, with much of its force deriving from a single judge’s opinion. Despite unresolved internal inconsistencies and a failed review, the doctrine gained binding authority and was later expanded by smaller benches. This demonstrates how a transformative constitutional principle can emerge through precedent despite doctrinal fragility and cautions against uncritical adoption in other constitutional contexts.

This understanding was further elaborated at the District Bar Association, where Chief Justice Nasir-ul-Mulk traced the jurisprudential history of salient features in South Asia, distinguishing cases such as Fazlul Quader Chaudhry¹³ on the ground that they involved executive orders under defunct constitutions, rather than parliamentary amendments enacted under an existing constitutional framework. The Chief Justice reaffirmed that the judiciary has never claimed supremacy over the Constitution nor asserted the power to strike down its provisions. He reiterated that the Objectives Resolution cannot be employed to invalidate constitutional articles and that, at best, the basic structure doctrine in Pakistan remains descriptive rather than prescriptive.

Justice Jawwad S. Khawaja further cautioned against adopting the Indian basic structure doctrine, noting the deep uncertainty surrounding its contours even within Indian jurisprudence. He highlighted that the absence of a definitive list of basic features¹⁴ renders the doctrine inherently indeterminate and places Parliament in an untenable position of not knowing ex ante which amendments may later be invalidated by judicial interpretation. The comparative experience of India itself demonstrates the dangers of such indeterminacy, with no consensus even in Kesavananda Bharati on what constitutes the basic structure, and with over two dozen features subsequently identified by different judges¹⁵. Such elasticity underscores why Pakistani courts have consistently refrained from adopting the doctrine to invalidate constitutional amendments.¹⁶

The Preamble Is Not a Grundnorm

It must be noted that, where J. Jawwad held this view regarding the basic structure; he considered the Constitution’s preamble unalterable. He held that “the directives/commands of the People as are given in the Preamble.”¹⁷ Two responses to this. Firstly, Abdul Hafeez Pirzada, one of the founding fathers of the Constitution of 1973, who presented the draft Bill of the Constitution before the parliament, explained the position of the Preamble vis-à-vis the operative parts of the Constitution, in the following words: “Preamble essentially is not an operative part of the Constitution. A preamble is a preamble that manifests the intention of the Legislature. In the past some people have claimed the preamble which reflects the Objectives Resolution of the first Constituent Assembly of Pakistan of 1949 as the grundnom making the crest of the Constitution subservient to the preamble. This is not the correct position. Preamble cannot be relied upon for the purposes of interpretation or enforcement of the Constitution where of the language of the Constitution is absolutely clear. This view was always the accepted view and only lately, in a case, the Supreme Court of Pakistan has reaffirmed this position that preamble is not a grundnom. We have also got some cases in which judgement has been delivered by a superior court in Pakistan whereby it is said that by virtue of the preamble, Judges of the High Courts, without disrespect to them, derived some divine power under the preamble to supersede the Constitution. I would like to categorically state that nothing could be more wrong than this… Therefore, the preamble at best serves as what is supposed to be manifestation of intention, nothing beyond that.”¹⁸

The approach, by J. Khawaja, however, invites serious reconsideration. The attribution of unalterable constitutional force to the Preamble is not self-evident and cannot be assumed without engaging with the framers’ own understanding of its role within the constitutional scheme. In particular, the view advanced by J. Jawwad appears to sit uneasily with the orthodox position that the Preamble serves a declaratory, rather than an operative, function. It is against this backdrop that the explanatory remarks of Abdul Hafeez Pirzada, one of the principal architects of the 1973 Constitution, assume decisive significance.

The second inconsistency¹⁹ with Justice Khawaja’s holding carries an implication, scarcely intended, that the Preamble, or at any rate those nine directives specifically foregrounded within it, is unamendable. That it serves as the constitutional master key is not in question; whether that structural centrality translates into textual permanence, however, is quite another matter. There is something instinctively unpleasing about a Parliament moving to strip the Preamble of its guarantees of fundamental rights, or quietly hollowing out whatever independence the judiciary is there said to possess. And here one must concede that most of what the Preamble contains, both in substance and in spirit, traces back to the popular will, which only reinforces what Justice Khawaja’s holding ultimately declares: that Parliament cannot amend its way past the values the Preamble codifies.

Yet there is one question the Bench itself raised during arguments, and to which this construction of the Preamble, for all its elegance, offers no answer. Suppose a Parliament were returned with an unequivocal electoral mandate, not merely implied, but set out in the manifesto on the strength of which votes were cast and won, that Pakistan should abandon its identity as an Islamic Republic and reconstitute itself as a secular state. One might, of course, reach for the founding-moment argument: that the framers of the 1973 Constitution, democratically elected and writing under the particular shadow of 1971, clearly and deliberately chose to establish an Islamic Republic, and embedded that choice in provisions they intended to place beyond ordinary revision. The argument has weight. But it is not self-executing, and the question it leaves suspended is rather more uncomfortable than the construction cares to admit.

However, such a construction leads to an internal contradiction in Justice Khawaja’s reasoning. The Honorable Justice has consistently accorded primacy throughout his jurisprudence to the will of the people and the fiduciary obligation of the State and its representatives to serve this will. If the will of the people clearly emerged in the form of a command/directive to delete the provisions of the Preamble related to religion, should it not be accorded deference and fulfilled as a part and parcel of the fiduciary obligation that “Justice Khawaja has painstakingly and eloquently elaborated not only in his opinion in the Amendments case, but also in the course of his illustrious career as a Supreme Court Judge?”²⁰ Such a position seems untenable and would not be helpful to the judiciary in evolving a standard for judicial review of constitutional amendments.

When a Judge Reasons Politically

It is submitted that Justice Azmat Saeed has applied a version of the expansive basic structure doctrine of the Indian Supreme Court and is therefore susceptible to the same critique that generally appertains to that theory, as well as to its inapplicability to the context of Pakistan. For the moment, suffice to say that the basic structure/salient features doctrine places too much discretion in the hands of individual Judges to determine what elements of the Constitution are included in the basic structure/salient features. This much is clear from the internal omissions or contradictions, whichever way they may be characterized, in the opinion of Justice Azmat Saeed itself. At various points in the opinion, Justice Azmat Saeed highlights parliamentary democracy, federalism and the independence of the judiciary as salient features, but at one point, he also points out ‘the Rule of Law’ to be a salient feature; and, most strikingly, the Honourable Judge omits to mention federalism as a salient feature in the operative portion of his opinion.

Justice Azmat Saeed further reasoned that the effect of the Eighteenth Amendment of shifting emphasis from the Parliamentary leader to the Party Head accords with the modus operandi of Pakistani politics, as it is due to the party leader’s popularity that the entire party wins. It is respectfully submitted that this is a truncated view of Pakistani politics and is, in any event, in stark contrast with the ‘salient feature’ of the parliamentary democratic form of government that the Honorable Judge himself has held up to be unamendable. It is also submitted that passing judgment on the basis of outright political reasoning is outside the province of the Judge. Justice Azmat Saeed’s reasoning is easily contradicted by numerous politicians who have been elected repeatedly from the same party. Electoral success in particular constituencies may be influenced by a number of factors, including a candidate’s influence or past record of contributing to the constituency’s development. The reasoning provided by Justice Azmat Saeed is, therefore, with respect, flawed in this regard.

A Plurality Is Not a Majority

Out of seventeen judges who sat on the bench, the leading opinion that birthed the idea of salient features and the fact that constitutional amendments could be struck was authored by Justice Azmat Saeed and was signed by seven members, making it a total of eight judges, an ‘unlikely’ plurality²¹, that remained short of reaching majority status. The SC in Chaudhary Parvez Elahi²² relied on its earlier judgment in Qazi Faez Isa to hold decisively that a plurality opinion lacks precedential value. The court in Qazi Faez Isa²³ held that “since even the commonality does not command the support of the majority it is not the judgment or ratio of the Court. Said direction therefore did not have operative effect.” In addition to this, it must be noted that “the Supreme Court, in its most divided opinion ever, held that the Court can review an amendment if it violates the ‘salient features of the Constitution’ or ‘commands/directives of the People’ or the ‘basic structure of the Constitution’ but the plurality does not review the amendments in question. Moreover, there is no consensus among the opinions on the standard or touchstone to be used in judicially reviewing a constitutional amendment.”²⁴

The foregoing analysis establishes, with considerable force, that no binding basic structure doctrine has ever taken root in Pakistan’s constitutional jurisprudence. From Fauji Foundation to Ghulam Mustafa Khar, from the divided opinions in Mahmood Khan Achakzai to the decisive refusal in Pakistan Lawyers Forum, the consistent thread in Pakistani constitutional law is not merely one of restraint, but of constitutional positioning: courts operate within the Constitution as its interpreters, not as arbiters of its validity. Whatever persuasive value the Indian experience may carry, Kesavananda Bharati itself was a product of quite a narrow majority; one judge effectively reshaping an entire constitutional order, and Justice Saqib Nisar’s cautionary note in the District Bar Association about treading that thorny path carries particular weight in our own context. Even accepting, purely for argument’s sake, that some version of the salient features doctrine survives as descriptive shorthand, the distinction drawn in Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Haque²⁵ that held “if the Constitution were itself altered for some such reason, and that in a substantial, and not merely a machinery aspect, there would clearly be an erosion, a whittling away of its provisions, which it would be the duty of the superior Courts to resist in defence of the Constitution” and developed by Justice Asif Saeed Khosa in the District Bar Association, stating that “it was a reference to the mechanism or methodology of achieving a constitutional aspiration”, whereby, rather than hollowing out the aspiration itself, it falls on the permissible side of any defensible line.

Such machinery-level adjustments include changes to bench-formation procedures and the methodology for appointing the chief justice, with reference to paradigmatic examples. They alter how constitutional authority is organized and exercised, not whether it exists. Courts of law are, after all, institutions of process as much as of principle, and no constitutional order has ever frozen its internal arrangements in perpetuity in the name of structural integrity. As observed in Wukala Mahaz, any change or deviation as to the working of a limb of the State that does not destroy a basic feature of the Constitution can be upheld; and the people and society must remain free, after adopting a Constitution, to refine the modalities through which they pursue the same enduring aspirations through improved or different arrangements²⁶. On this reasoning, the amendment are, at its core, a procedural recalibration rather than a substantive constitutional rupture, and the challenge premised on the basic structure doctrine; a doctrine that has never been authoritatively accepted in Pakistan, that rests on a fragile plurality even in the jurisdiction that birthed it, and that inherently places unguided discretion in the hands of individual judges; must fail.

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