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BEFORE THE HONOURABLE SUPREME COURT OF PAKISTAN

C. M. A. No. ______/2010

IN

C. P. No. 40 / 2010

Abdul Hafeez Pirzada Versus Federation of Pakistan

(i) Senator Mir Hasil Bizenjo s/o Mir Ghaus Bakhsh Bizenjo r/o Bizenpur
Tehsil Nal, District Khuzdar.

(ii) Abid Hasan Minto s/o Khawaja Ahmed Hasan r/o 4-A, Model Town,
Lahore (President Workers’ Party Pakistan).

(iii) Khawar Mumtaz w/o of Kamil Khan Mumtaz r/o H. No. 18-A, Mian Mir
Road, Upper Mall, Lahore.

(iv) Kamran Shafi s/o Iqbal Shafi r/o Wah Village, District Rawalpindi.

(v) Cecil Chaudhry s/o F. E. Chaudhry, Principal, St. Mary’s Academy, Tulsa
Road, Lalazar, Rawalpindi.

(vi) Dr. Abdul Hameed Nayyar s/o Ahmad Mohayuddin r/o 187-S, DHA,
Phase-I, Lahore.

(vii) Syed Mukhtar Bacha s/o Mian Gul Jan, Gulabad Jamrud Road, Peshawar

(viii) Muhammad Osama Siddique s/o Ch. Muhammad Siddique r/o 45-Canal
Bank, Aziz Avenue, Gulberg-V, Lahore.

(ix) All Pakistan Trade Unions Federation (APTUF) with its registered office
at 14-N, Industrial Area, Gulberg-II, Lahore through Ghulam Fareed
Awan, General Secretary.

(x) Omar Asghar Khan Foundation with its Office at 2-B, Parbat Road, F-7/3,
Islamabad, through its Chairperson, Ali Asghar Khan

(xi) Pakistan Institute of Labour Education and Research, PILER Centre, St.
001, Sector X, Sub-sector V, Gulshan-e-Maymar, Karachi through its
Program Manager, Sharafat Ali.
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(xii) Simorgh Women’s Resource and Publication Centre with its office at 2/7,
Fountain Corner, Canal Park, Gulberg-II, Lahore through Neelam
Hussain, Executive Director.

(xiii) Fisher Folk Association, Sachal Hall, Ibrahim Hyderi Bin Qasim Towers,
Karachi through its Chairperson, M. Ali Shah

(xiv) Sungi Development Foundation through Sheikh Asad Rehman s/o Justice
(Retd.) S. A. Rehman (Late) with its Head office at H. No. 1692, Civil
Lines, Circular Road, Abbotabad

(xv) Institute for Social Movements (ISM), through its Secretary General
Zulfiqar Shah, with its registered office at B-9, Naseem Nagar, Phase-IV,
Qasimabad, Hyderabad-71000.

(xvi) South Asia Partnership (Pakistan) (SAP-PK) with its office at Haseeb
Memorial Trust Building, Naseerabad, 2-KM, Raiwind Road, Thokar Niaz
Beg, Lahore-53700, through its Executive Director, Mohammad Tahseen.

(xvii) Awami Party through its Secretary General, Dr. Ayub Khan, with its
Central Secretariat at Office # 4, 2nd Floor, Arshad Sharif Plaza, G-11
Markaz, Islamabad.

(xviii) Labour Party Pakistan with its registered office at 40-Abbot Road, Lahore
through its Spokesperson, Farooq Tariq.

(xix) Abdul Rehman s/o Jam Nawab Hussain Samoon r/o Paro, Talib ul Mola
Street, Shah Mukhi Road, Hyderabad.

(xx) We Journalists through its Chairman, Mohammad Jafar Memon, address

H. No. 21, Shalimar Bungalows, Hyderabad

… APPLICANTS

APPLICATION FOR IMPLEADMENT AS INTERVENERS UNDER ORDER

XXXIII RULE 6 OF THE SUPREME COURT RULES READ WITH ALL
OTHER ENABLING PROVISIONS OF THE LAW.

Respectfully Sheweth:

1. That through the instant application the Applicants seek leave of this Honourable Court

to be impleaded as Interveners in the titled Constitutional Petition:

2. That the Applicant No. 1 (Mir Hasil Bizenjo) is a patriotic citizen and a member of the

Senate of Pakistan whose well-known contribution to the cause of democracy, federation

and the rule of law have been rendered through decades of political, intellectual and
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social activism. The Applicant is witness to and participant in the vicissitudes of the

national life of our nation since the 1970s. He is Senior Vice President of National Party

(NP), a political party working to strengthen the federation and democracy in Pakistan.

He is son of the late Baloch politician late Mir Ghaus Bakhsh Bizenjo, whose services

and commitment to democratic politics and rule of law in Pakistan are universally

acknowledged. Carrying forward the legacy of his father, the Applicant No. 1 has

devoted himself to the cause of human freedom and democratic expression. He has made

his best contribution to channelize the energies of the disgruntled youth in the province of

Balochistan to constructive ends.

The Applicant is a member of the Parliament since 1990 when he was first elected

to the National Assembly. As a member of the Senate of Pakistan, he is at present

on the Senate’s Standing Committee on Housing and Works, House Committee,

Standing Committee on States and Frontier Regions and the Standing Committee

on Industries and Production.

The Applicant No. 2 (Abid Hasan Minto) is a leading lawyer of this country and

President of the Workers’ Party Pakistan whose role in upholding democratic

values, peoples’ rights, rule of law and independence of judiciary is well known

and widely acknowledged. The Applicant has, for more than five decades, stood

with the industrial workers, peasants, the poor and the downtrodden of this

country. He was elected member of the Pakistan Bar Council from 1966 up to

1983. He was professor of law at the Punjab University Law College from 1963

to 1983. He was President, Lahore High Court Bar Association (1982); and

President, Supreme Court Bar Association of Pakistan (SCBA) (1997-1998). He

has also been affiliated with the International Association of Democratic Lawyers

(IADL) in which he was elected Vice President at its Barcelona Congress (1990)

and Bureau Member at its Cape Town Congress (1995).

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The Applicant No. 3 (Khawar Mumtaz) has a long and distinguished career in the

field of environment, gender issues and human rights. She is a founding member

of the renowned organization Shirkat Ghah, Women’s Resource Centre dedicated

to women’s rights which combines research, advocacy and capacity building. She

is also among the founding members of the Women’s Action Forum which stood

against the discriminatory laws promulgated by the former dictator General Zia.

She has served as a member of the National Core Group for Beijing Follow up;

the United Nations Population Fund’s Advisory Panel on Gender Development;

Steering Committee of the International Irrigation Management Institute; and was

the Regional Councilor for West Asia and Member Bureau of the International

Union for Conservation of Nature (IUCN).

The Applicant is also a respected and widely published researcher and writer. She

has co-authored the Pakistan Poverty Assessment National Report and won the

Prime Minister’s Award for her co-authored book Women in Pakistan: Two Steps

Forward One Step Back. In the year 2006, she was conferred with Sitara-e-

Imtiaz for social service and promotion of women’s rights.

The Applicant No. 4 (Kamran Shafi) is a former army officer and now a journalist

and a popular columnist for the daily Dawn with a large readership. A staunch

supporter of democracy and independent judiciary in Pakistan, he actively

participated in the struggle for the restoration of the judiciary during the period

2007-2009 and came face to face with the state’s coercive machinery several

times.

The Applicant No. 5 (Cecil Chaudhry) is son of the world-renowned Pakistani

photojournalist F. E. Chaudhry. He is a veteran fighter pilot who fought the Indo-

Pak war of 1965 as a Flight Lieutenant, and later the Indo-Pak War of 1971 as
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a Squadron Leader. He has been honoured for his gallantry and courage shown in

the air with the Sitara-e-Jurat. Cecil Chaudhry is now an educationist and is

affiliated with the Punjab Education Foundation. He is also active for the

betterment of children with disabilities and Special Education reforms. He is

currently the principal of Saint Mary's Academy in Rawalpindi.

The Applicant No. 6 (Dr. Abdul Hameed Nayyar) is a physicist with PhD from

the Imperial College, London. The Applicant took up a teaching position in

the Physics department at the Quaid-i-Azam University, Islamabad in 1973. Since

retiring in 2005, he has been engaged in policy research on issues regarding

education and energy at the Sustainable Development Policy Institute, Islamabad.

He has also been a visiting Research Scientist at the Princeton University since

1998. The Applicant is also a prominent peace activist, strong supporter of

nuclear non-proliferation, nuclear disarmament, and peaceful use of nuclear

technology. He is a writer, and co-author of research papers, articles, and reports

including “The Subtle Subversion: The State of Curricula and Textbooks in

Pakistan”, a report which critically examined curriculum guidelines and textbook

contents in Pakistan and has led the Pakistan government into rethinking the

existing education curricula. He is currently Director of Ali Institute of Education

at Lahore.

The Applicant No. 7 (Syed Mukhtar Bacha) is a social and peace activist based in

Peshawar.

The Applicant No. 8 (Mohammad Osama Siddique) is an educationist and was the

Head of the Law Department at the Lahore University of Management Sciences

(LUMS) during the lawyers’ movement. He was accused of having radicalized the

student body in favour of the movement. He was himself a Rhodes Scholar at

Oxford University and has a postgraduate degree in law from Harvard University.
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Presently he is a Ph.D. candidate at Harvard University. He has published widely

about constitutional developments in Pakistan.

The Applicant No. 9, APTUF, is a federation of more than 200 trade unions

representing over 200,000 workers all across Pakistan.

The Applicants No. 10 to 16 are not-for-profit, non-government organizations

working for a just and equitable society where fundamental rights of people are

respected, ensured and guaranteed.

The Applicants No. 17 and 18 are political parties established to work for a just

and equitable society.

The Applicant No. 19 is a journalist and the Applicant No. 20 is an association of

journalists committed to serving the people.

3. That through the instant application the Applicants humbly seek to place before this

Honourable Court a broad based civil society perspective with respect to the various

issues of fundamental constitutional importance that have been agitated in the titled

petition. The decision rendered by this Honourable Court in the titled matter will define

or redefine the scope and the nature of the democratic entitlements available to the people

of Pakistan. Consequently, this is a matter in which all segments of Pakistani society have

a stake. It is a matter in which the stand taken before this Hon’able Court by the political

government through its counsels might not reflect the great juristic debates of the last

sixty three years among Pakistanis of different ideological persuasions hailing from

different parts of the country. Political governments have political compulsions and

political agendas. The matter in the titled petition before this Hon’able Court is of far

greater importance than any political compulsion or agenda. Through the present petition

the Applicant-Intervenors humbly seek leave to assist this Hon’able Court in the titled

matter.
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4. That the Applicants come from diverse backgrounds but share a common legacy of

struggle for the rule of law, independence of judiciary and respect for the will of the

people as articulated through the democratic process. The present intervener application

is being filed by the Applicants out of an acute sense of moral responsibility at a historic

juncture in the constitutional development of our state, society and the polity. The

Applicants’ endeavour is to place before this Honourable Apex Court submissions that

are free from any partisan political affiliation so as to assist in the rendering of a

judgment that furthers the sense of ownership of the Constitution of Pakistan by the

people of Pakistan. It is this sense of ownership alone that will guard the constitutional

order against acts of subversion and disobedience. This fact stands proven by the struggle

launched by the people of Pakistan after the events of 9 March, 2007 and 3rd November,

2007 that led to the historic triumph of the Constitution on 15 March, 2009.

5. That the titled petition and the other connected petitions challenging various aspects of

the Eighteenth Amendment to the Constitution of the Islamic Republic of Pakistan, 1973

(hereinafter ‘the 18th Amendment’) are all based on the premise that this Hon’able Court

possesses the jurisdiction to declare void procedurally amendments to the Constitution on

the ground of violation of the Basic Structure or the Basic Features of the Constitution.

This is a theory of substantive rather than procedural review of constitutional

amendments and remains the single most controversial theory of constitutional law

globally. Apart from the apex courts of India and Bangladesh no other judicial system

working in the context of parliamentary democracy and on the basis of a clear vision of

trichotomy of powers has accepted this theory as an implied restraint on the power of the

people to amend their constitution according to their own developing vision.

6. That there are some jurisdictions in which the constitution expressly provides for the non-

amendability of certain constitutional provisions. While the restriction in these

jurisdictions is express it is not meant to perpetually enslave the people to the political
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precepts of the generation in existence at the time of the original drafting of the

constitution. These jurisdictions invariably provide for some method for the amendment

of even the ‘unamendable’ parts of the constitution without recourse to a revolution or a

coup. A cursory as well as an in depth view of the history of nations leaves no doubt that

the collective life of a vibrant people demands review of once cherished structures. The

French republic moved, in the 1940s, from the parliamentary form of government to the

presidential form through adoption of methods of constitutional change provided in the

French constitution. No subversion of the existing order was required. If the Applicants’

standpoint on the unamendability of the Basic Structure were accepted a similar change

in Pakistan would require an extra-constitutional subversion of the constitution.

Similarly, after the passage of the Human Rights Act, 1998 the British people accepted a

basic structural change in so far as the jurisdiction of the House of Lords as the apex

judicial forum was attenuated and subjected, matters pertaining to the enforcement of

basic human rights, to the jurisdiction of the European Court of Justice at Luxembourg.

The formation of the European Union is itself an example of a large number of countries

accepting a fundamental change in the sovereignty of each. Today, except for the United

Kingdom, all other member states have even given up the ancient prerogative to have

their own currency. Similarly, Egypt and Syria had amalgamated in the 1970s to form

the United Arab Republic. Contemporary history provides numerous examples of nations

making basic structural changes to their polity through constitutional means. Such

changes are made through recourse to whatever amendment process is provided in the

constitutional order in existence at any given time.

7. That it is entirely untenable to suggest that since direct recourse to the people through a

referendum was not provided the Constitution of 1973 intended the amending power

contained in Article 239 to be limited in scope. There is no warrant or basis for this

proposition. When the Constitution was drafted and then adopted in 1973 the Basic

Structure theory was unknown outside a small number of continental European countries
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and was not a significant part of the constitutional discourse in any jurisdiction based on

parliamentary democracy. The parliamentary debates prior to the adoption of the 1973

Constitution do not contain any reference to the amendment power in the Constitution

being a limited power.

8. That several versions of the Basic Structure theory are being urged in the titled and

connected petitions. Two versions may be readily identified. Firstly, it is being urged that

the assembly that drafted the Constitution of Pakistan in 1973 and that was elected in the

elections held in united Pakistan in 1970 possessed powers greater than those available to

any future parliament. It is being submitted that only the generation of voters in existence

in 1970 possessed the power to grant constituent power and the assembly then elected

was the final grantee of this power. Consequently, certain aspects of the Constitution as

drafted in 1973 may be declared ‘Basic’ by this Hon’able Court and placed beyond the

scope of the amending power of parliament. No juristic basis for declaring the assembly

elected in 1970 as the sole and last repository of the constituent power has been provided

by the Applicants apart from stating the obvious fact that the Constitution of 1973 was

adopted by the assembly then in existence. Related to this argument is the notion that the

word ‘amend’ as used in Article 239 contains inherent limitations. This is a theory, based

on a bleak vision of the continuing human aspiration to self-determination, that is

inherently anti-democratic and an affront to the right of self-determination of the living

people of Pakistan through an elected parliament.

9. That a second version of the Basic Structure theory urged before this Hon’able Court is

based on Article 2A of the Constitution and the Objectives Resolution of 1949. The titled

petition urges this Hon’able Court to declare Article 175A of the Constitution void on

account of violation of the Objectives Resolution. The contention is that the Objectives

Resolution is the grundnorm of the Constitution or at least a statement of the Basic

Features of the Constitution. On this basis the contents of the Objectives Resolution are
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seen to provide the ultimate test for the constitutional validity of constitutional

amendments. The Objectives Resolution and its status has been the subject of great

controversy throughout our history since 1949. This Hon’able Court had put matters to

rest in its landmark judgments in the cases of Hakim Khan and Kaneez Fatima. This

Hon’able Court had held that the Objectives Resolution was only a direction given to

itself by the assembly seized of the task of constitution making in 1949. That the said

Resolution could not be taken to be a touchstone for declaring void any provision of the

Constitution or other law enacted by parliament. This Hon’able Court had clearly held

that the Objectives Resolution could not be said to occupy a place higher than that of any

other provision of the Constitution. It is with concern that the Applicants note the

deliberate attempt by some quarters, including the Applicants, to suppress the impact of

the aforesaid two judgments. It is with regret that the Applicants note that the titled

petition seeks from this Hon’able Court a finding that amendments made to the

Constitution by the 17th Amendment, including those to Article 260, under the coercion

of the dictator Musharraf now form a part of the Basic Structure of the Constitution.

10. It is respectfully submitted that recourse to the Objectives Resolution of 1949 for finding

support for the principle of the independence of the judiciary is unnecessary. The

independence of the judiciary was venerated principle in Pakistani constitutionalism long

before the Objectives resolution was made a substantive part of the Constitution by the

dictator who had chosen to redraw the ‘ideological frontiers’ of this nation and had

appointed himself the guardian of his self-conceived ideological domain. Several

judgments of the superior courts of the country provide rousing testimony for this fact.

All known constitutional democracies cherish the principle of the independence of the

judiciary without the need for an instrument such as the Objectives Resolution.

11. That the Objectives Resolution was and remains a political document open to

contestation among the people of Pakistan. The Basic Structure doctrine and its particular
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version that relies on the Objectives Resolution are designed to subjugate the present and

future generations of Pakistanis to the myth of an immutable social contract entered into

in the past on behalf of all posterity. This will not only impoverish the political process

but will also erode respect for democracy and parliament in the hearts and minds of the

people of this country.

12. That the titled petition is based on various propositions and presumptions. Some of these

are rooted in sound principles of constitutional governance, democratic freedoms and

jurisprudential integrity. However, various other propositions canvassed before this

Honourable Court reflect only the contingent political preferences of the Applicants and

will, if accepted, lead to an exclusion of the people of Pakistan from meaningful

participation in key aspects of constitutional governance. Moreover, the titled petition

suffers from ambiguity and the lack of a coherent statement of the scheme and intent of

the Constitution of Pakistan, 1973. The titled petition also conflates and confuses the

exercise of judicial functions performed by the judiciary with non-judicial functions that

members of the superior judiciary may be required to perform, including participation in

the process of appointments to the superior judiciary.

13. That the titled petition takes issue with the creation of a Parliamentary Committee as

provided for by the impugned Article 175A. It is not denied that the quality of the

various members of parliament can be highly variable. However, the matter in issue is

not about this or any other parliament in particular. Institutional maturity can only come

through grant of responsibility. The titled petition describes the functions assigned to the

Parliamentary Committee as negating the principle of trichotomy of powers and in

particular Article 68 of the Constitution. Similarly, objection has been taken to the

presence of the Law Minister and Attorney General in the Judicial Commission as

constituted by Article 175A(2) on the ground that this amounts to a commingling of the

executive and judicial organs. The presumption on which the titled petition is based, that
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the Constitution prohibits any contact between the members of Parliament and the

members of the Executive with the members of the Judiciary, even when the Honourable

judges concerned are not acting in a judicial capacity, is untenable. However, without

prejudice to the untenability of the presumption that underlies the titled petition, it is not

clear whether the Applicant’s real grievance is on account of the presence of members of

the executive and the legislature in the two bodies envisaged by Article 175A or to the

involvement of any person other than the Honourable members of the judiciary in the

process of appointments to the superior judiciary. For instance, would the Applicant’s

grievance be redressed if instead of the Parliamentary Committee consisting of members

of Parliament a different committee comprised of members of civil society were set up

for receiving the nominations of the Judicial Commission. Presumably, such a committee

would not suffer on account of the doctrine of trichotomy of powers. Similarly, if the

Law Minister and the Attorney General were removed from the Judicial Commission and

replaced by persons who are not the members of the Government would the concerns of

the Applicants be redressed?

14. That if the real grievance of the Applicants is not on account of the presence of members

of the executive or the Parliament in the two bodies established by Article 175A but is on

account of the presence of any person who is not a member of the superior judiciary then

the titled petition would appear to assert a doctrine of isolation in the performance of

non-judicial functions that is not known to the Constitution of Pakistan, 1973 or indeed to

any other democratic constitutional scheme around the world.

15. That it is humbly urged that the following submissions and propositions deserve the most

rigorous scrutiny by this Honourable Court:

A) Is it necessarily true that the independence of the judiciary is possible only

if appointments to the superior judiciary are ultimately subject to the

judgment and discretion of the members of the judiciary alone? Is it not

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the case that an overwhelming majority of constitutional democracies

around the world that uphold the cherished principle of the independence

of the judiciary have judicial appointments processes that are broad based

without a decisive role being vested in members of the judiciary itself?

B) Is it not the case that a judge brings to the discharge of his or her sacred

function, inter alia, the following key attributes:

i) Personal integrity and strength of character;

ii) A world view and a social vision;

iii) Professional competence.

While the honourable members of the superior judiciary headed by the

Honourable Chief Justice of Pakistan are most eminently placed to form a

view as regards the professional competence of an individual and to assess

the reports of the various executive agencies with respect to the integrity

and character of a potential appointee, questions regarding a candidate’s

world view and social vision deserve scrutiny and assessment by the

people of Pakistan at the widest level of inclusion. Are the people of

Pakistan not entitled to effective participation in the process of

appointments, particularly to the superior judiciary, so as to be able to

assess and provide input with respect to the various proposed candidates?

C) By way of example, are the following judgments of the superior courts of

Pakistan, inclusive of the dissenting views expressed therein, not reflective

of competing world views and visions between equally honourable and

professionally competent members of the superior judiciary:

i) Hakim Khan v The State (PLD 1992 SC 595) and Kaneez

Fatima vs. Wali Muhammad (PLD 1993 SC 901). The landmark

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judgments rendered by this Honourable Court in the aforesaid two

cases restored the balance between the democratic aspirations of

the people of Pakistan on the one hand and the proper role of the

Objectives Resolution of 1949 in the constitutional scheme, on the

other. By declaring that Article 2A and the Objectives Resolution

of 1949 do not occupy a position higher than that enjoyed by other

articles of the Constitution this Honourable Court put to rest the

contention that the Objectives Resolution serves as the grundnorm

of Pakistani constitutionalism. The judgments in the aforesaid two

cases reflect a constitutional vision very different from the one that

underpins the judgment of a Full Bench of the Lahore High Court

in Sakina Bibi’s case (PLD 1992 Lah 99) wherein it was held that

original provisions of the Constitution of Pakistan, 1973 found to

be inconsistent with the intent of the Objectives Resolution

regarding the primacy of the junctions of Islam could be declared

void. It is respectfully submitted that the differences in the three

judgments referred to reflect the ongoing debate and tension in

Pakistani society and the intelligentsia regarding the import of the

Objectives Resolution and Article 2A of the Constitution. The

judgments by different judges of the superior judiciary have

reflected different aspects of this debate. It is respectfully

submitted that the people of Pakistan have a right to know where

proposed candidates for high judicial office stand with respect to

this and other issues of wide socio-political consequence. This is

only possible if the process of judicial appointments is open to feed

back from the people of Pakistan through their representatives.

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ii) The opinion in Presidential Reference No. 2 of 2005 regarding

the Hasba Bill (2005 SCMR 1601). The opinion rendered by this

Honourable Court reflects a grand and salutary vision of

democratic governance, tolerance for diversity and institutional

limits. It is respectfully submitted that the composition and

leadership of the Bench that rendered the opinion were critical to

the articulation of the aforesaid opinion. It is a fact universally

acknowledged that judges of equal legal acumen and personal

probity can arrive at vastly divergent conclusions on matters of

constitutional interpretation affecting the entire way of life of a

people. Cases dealing with racial segregation in the United States

such as Brown vs The Board of Education and those dealing with

affirmative action such as Bakke vs The Regents of the University

of Texas are abiding reminders of the critical importance of a

judge’s extra judicial world view to the discharge of his or her

judicial functions.

iii) Qazalbash Waqf vs The Federation (PLD 1990 SC 99). The

majority judgment declared land reforms unlawful on the touch

stone of the injunction of Islam. The minority, consisting of

Justices Shafi ur Rehman and Nasim Hassan Shah, presented an

alternative understanding of the Constitution of Pakistan and the

political process. The majority judgment declared unlawful

decades of political dialogue and a social vision that had animated

millions, before as well as after the creation of our beloved

Pakistan. The question of redistributive justice and the role of the

state in providing such justice has remained at the forefront of

national dialogue in countries as diverse as the Islamic Republic of

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Iran (where land reforms and redistribution were found lawful) and

the present day socially resurgent nations of much of Latin

America. One remarkable judgment has served to extinguish the

legitimacy of aspirations of millions and has underscored the

importance of societal stakes in the composition of the judiciary..

iv) Abdul Waheed v. Asma Jehangir (PLD 1997 Lah 301). The

case concerned the right of an adult Muslim woman to enter into

marriage out of her own freewill without requiring, as a matter of

legal compulsion, the consent of a male wali. The majority

judgment upheld the capacity of an adult Muslim woman to control

her life and destiny. The minority, however, reflected a

diametrically opposed vision of society and the relative capacity of

genders based on an understanding of the constitutional order in

place in Pakistan that remains the subject of intense debate and

dialogue. The judgments of the majority and the minority highlight

the importance of the vision rather than competence and probity of

superior court judges.

The list of judgments that have profoundly influenced the lives of the

people of Pakistan and have determined the contours of the political and

social debate in Pakistan is extremely long. These judgments and the

collective maturity that the people of Pakistan have always exhibited when

allowed the opportunity to participate in matters of national importance

testify to the fact that the people of Pakistan deserve a process of judicial

appointments that is opened to them and is transparent.

D) Is Article 175A of the Constitution that has been impugned in the titled

petition not an attempt by Parliament to put in place a process that is

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transparent and aimed at generating broad agreement between the various

stakeholders with respect to successful candidates for appointment to the

superior judiciary? In fact is the role of the Parliamentary Committee not

subsidiary to that of the Judicial Commission in so far as the

Parliamentary Committee may only disapprove a name forwarded by the

Judicial Commission with a super majority six out of eight drawn from

across the various political divides in Parliament. The fact that the

Parliamentary Committee may not suggest any names of its own ensures

that no person may be appointed to the superior judiciary of the country

without enjoying the support of the Judicial Commission. Consequently,

only those persons will be elevated to the Bench whose professional

competence and character have passed the test of scrutiny by the Judicial

Commission and were not unacceptable to an overwhelming majority of

the members of the Parliamentary Committee.

In view of the foregoing, it is respectfully submitted that:

A) The Applicants may kindly be impleaded as Intervenors in the titled matter.

B) The titled petition may kindly be disposed off with the finding that no occasion

for invoking the Basic Structure or Basic Features doctrine has arisen on account

of the amendments to the Constitution of Pakistan, 1973 made by the 18 th

Amendment to the Constitution, in particular Article 175A added by the said

amendment.

Any other order deemed to be just and fair in the circumstances of the matter

before this Hon’able Court may also kindly be made.

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DRAWN BY: FILED BY:

SALMAN AKRAM RAJA ADVOCATE-ON-RECORD

M.A. (Cambridge), LL.M (London)
LL.M (Harvard)
Advocate Supreme Court of Pakistan