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8/9/2019 Hasil Bizenjo and others versus Abdul Hafiz Pirzada
1/18
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 MirRoad, 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. Marys 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-CanalBank, Aziz Avenue, Gulberg-V, Lahore.
(ix) All Pakistan Trade Unions Federation (APTUF) with its registered officeat 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 Womens 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 NiazBeg, Lahore-53700, through its Executive Director, Mohammad Tahseen.
(xvii) Awami Party through its Secretary General, Dr. Ayub Khan, with itsCentral 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, Lahorethrough its Spokesperson, Farooq Tariq.
(xix) Abdul Rehman s/o Jam Nawab Hussain Samoon r/o Paro, Talib ul MolaStreet, Shah Mukhi Road, Hyderabad.
(xx) We Journalists through its Chairman, Mohammad Jafar Memon, addressH. No. 21, Shalimar Bungalows, Hyderabad
APPLICANTS
APPLICATION FOR IMPLEADMENT AS INTERVENERS UNDER ORDER
XXXIII RULE 6 OF THE SUPREME COURT RULES READ WITH ALLOTHER 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 Senates Standing Committee on Housing and Works, House Committee,
Standing Committee on States and Frontier Regions and theStanding 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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http://www.senate.gov.pk/ShowCommitteeDetail.asp?CommitteeCode=22http://www.senate.gov.pk/ShowCommitteeDetail.asp?CommitteeCode=22http://www.senate.gov.pk/ShowCommitteeDetail.asp?CommitteeCode=27http://www.senate.gov.pk/ShowCommitteeDetail.asp?CommitteeCode=35http://www.senate.gov.pk/ShowCommitteeDetail.asp?CommitteeCode=4http://www.senate.gov.pk/ShowCommitteeDetail.asp?CommitteeCode=4http://www.senate.gov.pk/ShowCommitteeDetail.asp?CommitteeCode=4http://www.senate.gov.pk/ShowCommitteeDetail.asp?CommitteeCode=4http://en.wikipedia.org/wiki/Pakistan_Bar_Councilhttp://en.wikipedia.org/wiki/Punjab_University_Law_Collegehttp://en.wikipedia.org/wiki/Supreme_Court_Bar_Association_of_Pakistanhttp://en.wikipedia.org/wiki/Barcelonahttp://en.wikipedia.org/wiki/Cape_Townhttp://www.senate.gov.pk/ShowCommitteeDetail.asp?CommitteeCode=27http://www.senate.gov.pk/ShowCommitteeDetail.asp?CommitteeCode=35http://www.senate.gov.pk/ShowCommitteeDetail.asp?CommitteeCode=4http://www.senate.gov.pk/ShowCommitteeDetail.asp?CommitteeCode=4http://en.wikipedia.org/wiki/Pakistan_Bar_Councilhttp://en.wikipedia.org/wiki/Punjab_University_Law_Collegehttp://en.wikipedia.org/wiki/Supreme_Court_Bar_Association_of_Pakistanhttp://en.wikipedia.org/wiki/Barcelonahttp://en.wikipedia.org/wiki/Cape_Townhttp://www.senate.gov.pk/ShowCommitteeDetail.asp?CommitteeCode=228/9/2019 Hasil Bizenjo and others versus Abdul Hafiz Pirzada
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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, Womens Resource Centre dedicated
to womens rights which combines research, advocacy and capacity building. She
is also among the founding members of the Womens 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 Funds 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 Ministers Award for her co-authored bookWomen in Pakistan: Two Steps
Forward One Step Back. In the year 2006, she was conferred with Sitara-e-
Imtiazfor social service and promotion of womens 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 states 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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http://en.wikipedia.org/wiki/Fighter_pilothttp://en.wikipedia.org/wiki/Indo-Pakistani_war_of_1965http://en.wikipedia.org/wiki/Indo-Pakistani_war_of_1965http://en.wikipedia.org/wiki/Flight_Lieutenanthttp://en.wikipedia.org/wiki/Indo-Pakistani_War_of_1971http://en.wikipedia.org/wiki/Fighter_pilothttp://en.wikipedia.org/wiki/Indo-Pakistani_war_of_1965http://en.wikipedia.org/wiki/Indo-Pakistani_war_of_1965http://en.wikipedia.org/wiki/Flight_Lieutenanthttp://en.wikipedia.org/wiki/Indo-Pakistani_War_of_19718/9/2019 Hasil Bizenjo and others versus Abdul Hafiz Pirzada
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a Squadron Leader. He has been honoured for his gallantry and courage shown in
the air with theSitara-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 ofSaint 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 ofnuclear
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.
5
http://en.wikipedia.org/wiki/Squadron_Leaderhttp://en.wikipedia.org/wiki/Sitara-e-Jurathttp://en.wikipedia.org/wiki/Sitara-e-Jurathttp://en.wikipedia.org/wiki/St_Mary's_Academy_(Rawalpindi)http://en.wikipedia.org/wiki/Rawalpindihttp://en.wikipedia.org/wiki/Physicisthttp://en.wikipedia.org/wiki/PhDhttp://en.wikipedia.org/wiki/Imperial_Collegehttp://en.wikipedia.org/wiki/Londonhttp://en.wikipedia.org/wiki/Physicshttp://en.wikipedia.org/wiki/Quaid-i-Azam_Universityhttp://en.wikipedia.org/wiki/Islamabadhttp://en.wikipedia.org/wiki/1973http://en.wikipedia.org/wiki/Sustainable_Development_Policy_Institutehttp://en.wikipedia.org/wiki/Research_Scientisthttp://en.wikipedia.org/wiki/Princeton_Universityhttp://en.wikipedia.org/wiki/Peace_activisthttp://en.wikipedia.org/wiki/Nuclear_proliferationhttp://en.wikipedia.org/wiki/Nuclear_disarmamenthttp://en.wikipedia.org/wiki/Nuclear_technologyhttp://en.wikipedia.org/wiki/Nuclear_technologyhttp://en.wikipedia.org/wiki/Squadron_Leaderhttp://en.wikipedia.org/wiki/Sitara-e-Jurathttp://en.wikipedia.org/wiki/St_Mary's_Academy_(Rawalpindi)http://en.wikipedia.org/wiki/Rawalpindihttp://en.wikipedia.org/wiki/Physicisthttp://en.wikipedia.org/wiki/PhDhttp://en.wikipedia.org/wiki/Imperial_Collegehttp://en.wikipedia.org/wiki/Londonhttp://en.wikipedia.org/wiki/Physicshttp://en.wikipedia.org/wiki/Quaid-i-Azam_Universityhttp://en.wikipedia.org/wiki/Islamabadhttp://en.wikipedia.org/wiki/1973http://en.wikipedia.org/wiki/Sustainable_Development_Policy_Institutehttp://en.wikipedia.org/wiki/Research_Scientisthttp://en.wikipedia.org/wiki/Princeton_Universityhttp://en.wikipedia.org/wiki/Peace_activisthttp://en.wikipedia.org/wiki/Nuclear_proliferationhttp://en.wikipedia.org/wiki/Nuclear_disarmamenthttp://en.wikipedia.org/wiki/Nuclear_technologyhttp://en.wikipedia.org/wiki/Nuclear_technology8/9/2019 Hasil Bizenjo and others versus Abdul Hafiz Pirzada
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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 Honable 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 Honable 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 Honable 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 Honable 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 Honable 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 Honable Court is
based on Article 2A of the Constitution and the Objectives Resolution of 1949. The titled
petition urges this Honable 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 Honable Court had put matters to
rest in its landmark judgments in the cases ofHakim Khan and Kaneez Fatima. This
Honable 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 Honable 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 Honable 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 Applicants 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 Applicants
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 candidates
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 thegrundnorm
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 Bibis 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
judges 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 18th
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 Honable 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
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