IN THE SUPREME COURT OF PAKISTAN 
(Original Jurisdiction) 
 
 
 
 
 
 
 
 
 
PRESENT: 
 
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY,HCJ 
MR. JUSTICE JAVED IQBAL 
MR. JUSTICE MIAN SHAKIRULLAH JAN 
MR. JUSTICE TASSADUQ HUSSAIN JILLANI 
MR. JUSTICE NASIR-UL-MULK 
MR. JUSTICE RAJA FAYYAZ AHMED 
MR. JUSTICE MUHAMMAD SAIR ALI 
MR. JUSTICE MAHMOOD AKHTAR SHAHID SIDDIQUI 
MR. JUSTICE JAWWAD S. KHAWAJA 
MR. JUSTICE ANWAR ZAHEER JAMALI 
MR. JUSTICE KHILJI ARIF HUSSAIN 
MR. JUSTICE RAHMAT HUSSAIN JAFFERI 
MR. JUSTICE TARIQ PARVEZ  
MR. JUSTICE MIAN SAQIB NISAR 
MR. JUSTICE ASIF SAEED KHAN KHOSA 
MR. JUSTICE GHULAM RABBANI 
MR. JUSTICE KHALIL-UR-REHMAN RAMDAY 
 
 
CONSTITUTION PETITIONS NOS. 11-15, 18-22, 24, 31, 35, 36, 37 & 
39-44/2010, 
CM APPEAL NO. 91/2010, HRC Nos.20492-P &22753-K/10 
and  
Civil Petition. No. 1901/2010   
(On appeal from the order of PHC, Peshawar 
dt:16.6.10 passed in W.P. No. 1581/10) 
 
Nadeem Ahmed Advocate 
 
 
…. 
 
PETITIONER 
In Const. P. 11/2010) 
 
Distt. Bar Association, Rawalpindi  
…. 
 
PETITIONER 
(In Const. P. 12/2010) 
 
Watan Party through its Chairman  
…. 
 
PETITIONER 
(In Const. P. 13/2010) 
 
Supreme Court Bar Association 
 
…. 
 
PETITIONER 
(In Const. P. 14/2010) 
 
Muhammad Ijazul Haq  
 
 
…. 
 
PETITIONER 
(In Const. P. 15/2010) 
 
 
Const.P.11/2010 etc. 
2 
Lahore High Court Bar Association  
…. 
 
PETITIONER 
(In Const. P. 18/2010) 
 
Lahore High Court  
Rawalpindi Bench Bar Association  
…. 
 
PETITIONER 
(In Const. P. 19/2010) 
 
Pakistan Lawyers Forum 
 
 
…. 
 
PETITIONER 
(In Const. P. 20/2010) 
 
Sardar Khan Niazi 
 
 
 
…. 
 
PETITIONER 
(In Const. P. 21/2010) 
 
Shahid Orakzai 
 
 
 
 
…. 
 
PETITIONER 
(In Const. P. 22/2010) 
 
M. Kowkab Iqbal  
 
 
 
…. 
 
PETITIONER 
(In Const. P. 24/2010) 
 
Al-Jehad Trust 
 
 
 
 
…. 
 
PETITIONER 
(In Const. P. 31/2010) 
 
District Bar Association Sangarh  
 
…. 
 
PETITIONER 
(In Const. P. 35/2010) 
 
District Bar Association Gujrat 
 
…. 
 
PETITIONER 
(In Const. P. 36/2010) 
 
District Bar Association Sialkot 
 
…. 
 
PETITIONER 
(In Const. P. 37/2010) 
 
Arshad Mahmood Bago etc. 
 
 
…. 
 
PETITIONER 
(In Const. P. 39/2010) 
 
Dr. Abdul Hafeez Pirzada 
 
 
…. 
 
PETITIONER 
(In Const. P. 40/2010) 
 
Dr. Muhammad Aslam Khaki  
 
…. 
 
PETITIONER 
(In Const. P. 41/2010)  
 
Shamshad Ahmed Mangat 
 
 
…. 
 
PETITIONER 
(In Const. P. 42/2010) 
 
Julious Salik 
 
 
 
 
…. 
 
PETITIONER 
(In Const. P. 43/2010) 
 
Concerned Citizens of Pakistan etc.  
…. 
 
PETITIONER 
(In Const. P. 44/2010) 
 
Application by Lawyers of Hazara Division…. 
 
APPLICANT 
(In HRC No. 20492-P/10) 
 
 
 
 
 
 
Application by Baba Sardar Haider Zaman…. 
 
APPLICANT 
(In HRC No. 22753-K/10) 
 
 
…. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Const.P.11/2010 etc. 
3 
Shahid Orakzai   
 
 
 
…. 
 
PETITIONER 
(In C.P. 1901/10)  
 
 
 
…. 
 
 
 
 
 
 
 
 
 
 
 
 
 
Watan Party through its Chairman  
…. 
 
APPELLANT  
(In CM Appeal No. 91/2010 
 in Const. P. NIL/2010) 
 
VERSUS 
 
Federation of Pakistan and others   
….  
 
RESPONDENTS 
 
 
 
For the petitioner: 
Mr. Muhammad Akram Sheikh, Sr. ASC,  
(Const. P. 11/2010) 
 
 
Mr. M.A. Zaidi, AOR  
 
 
 
 
 
Assisted by  
 
 
 
 
 
Barrister Sharjeel Adnan Sh., Adv. 
 
 
 
 
 
Barrister Natalia Kamal, Adv. 
 
 
 
 
 
Barrister Sajeel Shehryar, Adv. 
 
Barrister Ahmed Kamran, Adv. 
 
M. Ishaque Shah, Adv 
 
Hafiz Muhammad Naeem, Adv 
 
Ms. Sameen Khan, Adv 
 
For the petitioner: 
 
Mr. Muhammad Ikram Ch., Sr. ASC 
(Const. P. 12/2010) 
 
Mr. Arshad Ali Chaudhry, AOR  
 
 
 
 
 
Assisted by  
 
 
 
 
 
Syed Masood Hussain, Adv. 
 
 
 
 
 
Ch. Muhammad Bashir, Adv. 
 
Mr. Mudassar Ikram Ch.,Adv. 
 
Mr. Shoaib Shahid, Adv. 
 
 
For the petitioner: 
 
Barrister Zafarullah Khan,Sr. ASC 
(Const. P. 13/2010 &  
CM Appeal No. 91/2010) 
 
  
 
For the petitioner: 
 
Mr. Hamid Khan, Sr. ASC 
(Const. P. 14, 18, 35 & 36, 
Mr. Rashid A. Rizvi, Sr. ASC 
37 & 39/2010) 
  
 
Mr. Ahmed Awais, ASC  
 
 
 
 
 
Mr. M.S. Khattak, AOR 
 
 
 
 
 
Assisted by 
 
 
 
 
 
Mr. Waqar Rana, Adv. 
 
 
 
 
 
Mr. Sikandar Khan, Adv. 
 
 
 
 
 
Mr. Taimur Inayat Malik, Adv. 
 
For the petitioner: 
 
Mr. M.A. Ghaffarul Haq, ASC 
(Const. P. 15/2010) 
 
Mr. Arshad Ali Chaudhry, AOR  
 
For the petitioner: 
 
Syed Zulfiqar Abbas Naqvi, ASC 
(Const. P. 19/2010) 
 
Mr. Arshad Ali Chaudhry, AOR  
 
Petitioner:  
 
 
Mr. A.K. Dogar, Sr. ASC. 
(Const. P. 20/2010) 
 
  
 
Const.P.11/2010 etc. 
4 
 
Petitioner:  
 
 
Sardar Khan Niazi, In Person 
(Const. P. 21/2010) 
 
  
 
Petitioner:  
 
 
Mr. Shahid Orakzai, In Person 
(Const. P. 22/2010 &  
C.P. 1901/10) 
 
  
 
Petitioner:  
 
 
Mr. M. Kowkab Iqbal, ASC, In Person 
(Const. P. 24/2010) 
 
  
 
Petitioner: 
Mr. Habib-ul-Wahab-ul-Khairi, ASC,  
(Const. P. 31/2010) 
 
In Person 
 
 
For the petitioner: 
Dr. Abdul Hafeez Pirzada, Sr. ASC,  
(Const. P. 40/2010) 
 
In Person 
 
 
 
 
 
Barrister Mian Gul Hasan Aurangzeb, ASC  
 
 
 
 
 
Mr. M.S. Khattak, AOR.  
 
 
 
 
 
Assisted by 
 
 
 
 
 
Mr. Sikandar Bashir Mohmand, ASC 
 
 
 
 
 
Mr. Hamid Ahmed, Adv. 
 
 
 
 
 
Ms. Saleha Hyat, Adv. 
 
 
 
 
 
Barrister Abdul Sattar Pirzada, Adv. 
 
Petitioner: 
Dr. Muhammad Aslam Khaki, ASC, 
(Const. P. 41/2010) 
 
In Person 
 
For the petitioner: 
 
Mr. Hashmat Ali Habib, ASC  
(Const. P. 42/2010) 
 
Mr. M.S. Khattak, AOR.  
 
 
 
 
 
Assisted by 
 
 
 
 
 
Mr. Zahid Hussain Malik, Adv. 
 
For the petitioner: 
 
Mr. Zulfiqar Ahmed Bhutta, ASC  
(Const. P. 43/2010) 
 
Mr. Ejaz Muhammad Khan, AOR.  
 
For the petitioner: 
 
Mr. Rasheed A. Rizvi, Sr.ASC  
(Const. P. 44/2010) 
 
Mr. M.S. Khattak, AOR.  
 
For the Applicant:  
 
Nemo 
(HRC. 20492-P/10) 
 
 
 
For the Applicant:  
 
Nemo 
(HRC. 22753-K/10) 
 
 
On Court notice:  
 
Moulvi Anwarul Haq  
Attorney General for Pakistan 
Assisted by 
Mr. Salman Faisal, Adv. 
Syed Ali Mustafa Gillani, Adv. 
Ms. Shafaq Mohsin, Adv. 
 
Mr. Yousaf Leghari, A.G. Sindh 
With Raja Abdul Ghafoor, AOR 
 
Dr. Salahuddin Mengal, A.G. Balochistan 
Const.P.11/2010 etc. 
5 
Mr. Mahmood Raza, Addl. A.G. Balochistan 
 
Khawaja Haris Ahmed, A.G. Punjab 
Ch. 
Khadim 
Hussain 
Qaiser, 
Addl. 
A.G.Punjab 
 
 
 
 
 
Assisted by 
 
 
 
 
 
Mr. Raza Qureshi, Adv. 
Barrister Syeda Maqsooma Zahra Bokhari, 
Adv. 
 
 
 
 
 
Kh. Isaam Bin Haris, Adv. 
  
Mr. Asadullah Khan Chamkani, A.G. KPK 
Syed Arshad Hussain Shah, Addl. A.G. KPK 
 
 
For the Federation: 
 
Mr. Wasim Sajjad, Sr. ASC 
(Const. P. 11,14 & 40/10)    Mr. Mehmood A. Sheikh, AOR  
  
 
 
 
 
 
Assisted by 
 
 
 
 
 
Mr. Idrees Ashraf, Adv. 
 
 
 
 
 
Barrister Ali Hassan Sajjad, Adv. 
 
 
 
 
 
Barrister Qamar Hassan Sajjad, Adv. 
 
 
 
 
 
Ms. Sambara Arbab Mungrani,Adv. 
 
(Const. P. 12/2010):   
Sardar Muhammad Ghazi, ASC 
 
 
 
 
 
Mr. Mehmood A. Sheikh, AOR 
(Const. P. 13,19, 35/10 &  
Raja Muhammad Ibrahim Satti, Sr. ASC 
C.M.Appeal No. 91/10): 
Mr. Mehmood A. Sheikh, AOR  
 
 
 
 
 
 
 
Assisted by 
 
 
 
 
 
Ms. Shazia Yasin Hashmi, Adv. 
 
 
 
 
 
Mr. Usman Ibrahim Satti, Adv. 
 
(Const. P. 15/2010):   
Barrister Bacha Khan, ASC   
(For Federation)  
 
Mr. Mehmood A. Sheikh, AOR 
 
(Const. P.18,21,22,37,39   
Mr. K.K.Agha, Adl. AGP 
& 42/2010):  
 
 
Mr. Mehmood A. Sheikh, AOR  
 
 
(Const. P. 24 & 41 /2010):  Ch. Nasrullah Warraich, ASC 
 
 
 
 
 
Mr. Mehmood A. Sheikh, AOR  
 
(Const. P. 31/2010):   
Mr. Salahuddin Gandapur, ASC 
 
 
 
 
 
Mr. Mehmood A. Sheikh, AOR  
 
(Const. P. 35/2010):   
Mr. Iftikhar-ul-Haq Khan,ASC 
 
 
 
 
 
Mr. Mehmood A. Sheikh, AOR  
 
(Const. P. 36/2010):   
Mr. Mushtaq Masood, ASC  
 
 
 
 
 
Mr. Naeem Masood, ASC 
 
 
 
 
 
Mr. Mehmood A. Sheikh, AOR  
 
(Const. P. 39/2010):   
Mr. Iftikhar Ahmed Mian, ASC  
 
 
 
 
 
Mr. Mehmood A. Sheikh, AOR 
 
(Const. P. 43/2010):   
Mr. Khurshid Ahmed Sodi, ASC 
 
 
 
 
 
Mr. Mehmood A. Sheikh, AOR 
Const.P.11/2010 etc. 
6 
 
(For the Govt. of KPK:  
Syed Iftikhar Hussain Gillani, Sr. ASC  
(Const. P.13,15,20 & 
 
Mr. Shaukat Hussain, AOR (Absent) 
24/2010) 
 
 
 
For the Govt. of Punjab:  
Mr. Shahid Hamid, ASC  
(Const. P. 14,18,35,36  
Mr. Abid Aziz Sheikh, ASC  
& 37/2010)  
 
 
Assisted by 
 
 
 
 
 
Mr. Shujaat Ali Khan,Asst. A.G. Punjab 
 
 
 
 
 
Mr. Tahir Mahmood Khokhar, Adv. 
 
 
 
 
 
Ms. Aysha Hamid, Adv. 
 
For the Applicant 
Sahibzada Ahmed Raza Khan Qasuri,  
(in CMA No.1599/10) 
 
Sr.ASC, In Person 
 
For the Applicant  
 
Mr. Salman Akram Raja, ASC 
(in CMA Nos. 1859 &   
Assisted by 
1959/10) 
 
 
 
Syed Shahab Qutub, Adv. 
 
 
 
 
 
Mr. Waqas Mir,Adv. 
 
 
 
 
 
Ms. Aneesa Agha, Adv. 
 
 
 
 
 
Mr. Wasif Majeed, Adv. 
 
 
 
 
 
Ms. Sahar Bandial, Adv. 
 
 
 
 
 
Mian Bilal Ahmed, Adv. 
 
 
 
 
 
Malik Ghulam Sabir, Adv. 
 
For the Applicant  
 
Dr. Syed A. S. Pirzada, In person 
(in CMA No. 2681/10)  
 
 
 
Dates of hearing: 
24-31/5, 1–3, 7-10/6, 5-8, 12-15, 19-
22, 26-29/7 , 2-5, 9-12, 16-19 & 23-
25,30,31/8, & 1-2,6-7,27-30/9, 2010. 
 
 
ORDER 
 
 
Through these petitions, various petitioners have called in question 
the provisions of Articles 1, 17, 17(4), 27, 38, 45, 46, 48, 51, 58(2)(b), 62, 63, 63A, 91, 
106, 148, 175, 177, 193, 203C, 209, 219, 226, 245, 260 and 267A and insertion of 
Article 175A brought about through 18th Amendment  in the Constitution.  
2. 
It has been argued that the amendments made are violative of the 
salient features of the Constitution which according to them, are as under: 
(i) 
Parliamentary form of government; 
(ii) 
Democracy blended with Islam; 
(iii) 
Provision of fundamental rights; 
Const.P.11/2010 etc. 
7 
(iv) 
Independence of Judiciary; and 
(v) 
Federalism. 
3. 
Petitioners mostly have challenged the vires of Article 175A of the 
Constitution, a reference to which would be in order:- 
“175A. Appointment of Judges to the Supreme Court, High Courts 
and the Federal Shariat Court.—(1) There shall be a Judicial 
Commission of Pakistan, hereinafter in this Article referred to as the 
Commission, for appointment of Judges of the Supreme Court, High 
Courts and the Federal Shariat Court, as hereinafter provided. 
 
(2) For appointment of Judges of the Supreme Court, the Commission 
shall consist of--- 
 
(i) 
Chief Justice of Pakistan; 
Chairman 
(ii) 
two most senior Judges of 
the Supreme Court; 
Member 
(iii) 
a former Chief Justice or 
a former Judge of the 
Supreme 
Court 
of 
Pakistan to be nominated 
by the Chief Justice of 
Pakistan, in consultation 
with the two member 
Judges, for a term of two 
years; 
Member 
(iv) 
Federal Minister for Law 
and Justice; 
Member 
(v) 
Attorney-General 
for 
Pakistan; and 
Member 
(vi) 
a Senior Advocate of the 
Supreme 
Court 
of 
Pakistan nominated by 
the Pakistan Bar Council 
for a term of two years.  
Member 
 
(3) Notwithstanding anything contained in clause (1) or clause (2), the 
President shall appoint the most senior Judge of the Supreme Court as the 
Chief Justice of Pakistan. 
 
(4) The Commission may make rules regulating its procedure. 
 
(5) For appointment of Judges of a High Court, the Commission in clause 
(2) shall also include the following, namely:- 
 
(i) 
Chief Justice of the High 
Court 
to 
which 
the 
appointment 
is 
being 
made; 
Member 
(ii) 
the most senior Judge of 
that High Court; 
Member 
(iii) 
Provincial Minister for 
Law; and 
Member 
Const.P.11/2010 etc. 
8 
(iv) 
a senior advocate to be 
nominated 
by 
the 
Provincial Bar Council 
for a term of two years: 
Member 
 
Provided that for appointment of the Chief Justice of a High Court, 
the most senior Judge of the Court shall be substituted by a 
former Chief Justice or former Judge of that Court, to be 
nominated by the Chief Justice of Pakistan in consultation with 
the two member Judges of the Commission mentioned in 
clause(2): 
 
 
Provided further that if for any reason the Chief Justice of High 
Court is not available, he shall also be substituted in the manner 
as provided in the foregoing proviso. 
 
(6) For appointment of Judges of the Islamabad High Court, the 
Commission in clause (2) shall also include the following, namely:- 
 
(i) 
Chief 
Justice 
of 
the 
Islamabad High Court; 
and 
Member 
(ii) 
most senior Judge of that 
High Court: 
Member 
 
Provided that for initial appointment of the Judges of the 
Islamabad High Court, the Chief Justices of the four Provincial 
High Courts shall also be members of the Commission. 
 
Provided further that subject to the foregoing proviso, in case of 
appointment of Chief Justice of Islamabad High Court, the provisos 
to clause (5) shall, mutatis mutandis, apply. 
 
(7) For appointment of Judges of the Federal Shariat Court, the 
Commission in clause (2) shall also include the Chief Justice of the Federal 
Shariat Court and the most senior Judge of that Court as its members: 
 
Provided that for appointment of Chief Justice of Federal Shariat 
Court, the provisos to clause (5) shall, mutatis mutandis, apply.  
 
(8) The Commission by majority of its total membership shall nominate to 
the Parliamentary Committee one person, for each vacancy of a Judge in 
the Supreme Court, a High Court or the Federal Shariat Court, as the case 
may be; 
 
(9) The Parliamentary Committee, hereinafter in this Article referred to as 
the Committee, shall consist of the following eight members, namely:- 
 
(i) 
four members from the Senate; and 
 
(ii) 
four members from the National Assembly. 
 
(10) Out of the eight members of the Committee, four shall be from the 
Treasury Benches, two from each House and four from the Opposition 
Benches, two from each House. The nomination of members from the 
Treasury Benches shall be made by the Leader of the House and from the 
Opposition Benches by the Leader of the Opposition. 
 
Const.P.11/2010 etc. 
9 
(11) Secretary, Senate shall act as the Secretary of the Committee. 
 
(12) The Committee on receipt of a nomination from the Commission may 
confirm the nominee by majority of its total membership within fourteen 
days, failing which the nomination shall be deemed to have been 
confirmed: 
 
Provided that the Committee may not confirm the nomination by 
three-fourth majority of its total membership within the said 
period, in which case the Commission shall send another 
nomination. 
 
(13) The Committee shall forward the name of the nominee confirmed by it 
or deemed to have been confirmed to the President for appointment. 
 
(14) No action or decision taken by the Commission or a Committee shall 
be invalid or called in question only on the ground of the existence of a 
vacancy therein or of the absence of any member from any meeting thereof. 
 
(15) The Committee may make rules for regulating its procedure.” 
 
 
4. 
It has been argued that this provision is violative of one of the 
salient features of the Constitution i.e. independence of judiciary; that the judicial 
independence has nexus with the appointment process; that it is unworkable and 
impracticable inasmuch as the nominations made by the Judicial Commission are 
subject to scrutiny by the Parliamentary Committee which is empowered to 
confirm and forward the nominations of the Commission to the President for 
appointment under clauses (12) and (13) of Article 175A; that the Parliamentary 
Committee has been given veto powers and even a unanimous recommendation 
made by the Judicial Commission can be vetoed by six out of eight members 
selected from the Parliament; that the insertion of this new Article is a product of 
mala fides and that the process of appointment of Judges will have an adverse 
effect on judicial independence as it is likely not only to make the appointment 
process political but would even otherwise affect its structural insularity which is 
an essential element of judicial independence. It was argued that this Court has 
power of judicial review of constitutional amendments, if the basic 
structure/features or the core values have been tinkered with. 
Const.P.11/2010 etc. 
10 
5. 
While praying for striking down the provisions under challenge, 
the concept of basic structure was pressed into service and it was maintained that 
the principle of substantive limits on the power to amend the Constitution has 
become a part of constitutional law in several liberal democracies. Reference was 
made to the judgments rendered by the Supreme Courts of India and Bangladesh 
where the amendments were struck down on the touchstone of basic structure. It 
was submitted that the basic structure of the Constitution of Pakistan was even 
acknowledged by this Court in Mahmood Khan Achakzai v. Federation of 
Pakistan (PLD 1997 SC 426) and Syed Zafar Ali Shah v. General Pervez 
Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) and even in Wukala 
Mahaz Barai Thafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263) but 
the Court did not deem it proper to make it a touchstone to strike down a 
constitutional provision. These judgments, it was further argued, needed            
re-visiting. 
6. 
Learned Attorney General for Pakistan, Maulvi Anwar-ul-Haq, 
learned Additional Attorney General, Mr. K. K. Agha and the learned counsel 
appearing for the Federation Mr. Wasim Sajjad, ASC defended the impugned 
provisions by submitting that the concept of basic structure as a touchstone to 
strike down a constitutional provision is alien to our jurisprudence and this 
Court may not like to review its own judgments as no good grounds have been 
canvassed so far, to warrant re-visiting. Learned counsel appearing for the 
Province of Punjab Mr. Shahid Hamid, ASC defended the impugned 
amendment. He, however, in all fairness, admitted that the enforcement of 
Article 175A may raise certain issues and it would be in fitness of things if the 
matter is referred to the Parliament for re-consideration in terms of Article 267A 
of the Constitution. 
7. 
We have considered the submissions made and have held extensive 
deliberations qua all the Articles under challenge. The Court at this stage would 
Const.P.11/2010 etc. 
11 
not like to express its opinion on the merits of the issues raised and arguments 
addressed and would rather, in the first instance, defer to the parliamentary 
opinion qua Article 175A on reconsideration by it in terms of this order. We 
would thereafter decide all these petitions adverting to all the issues raised 
therein. 
8. 
The Court is conscious that it is a creation of the Constitution which 
envisages, inter alia, a structure of governance based on trichotomy of powers in 
terms of which the functions of each organ have been constitutionally delineated 
keeping in view the seminal concept of separation of powers. The political 
sovereign i.e. the people, being trustees of a “sacred” trust in the distribution of 
powers under the Constitution, did not make Judges supreme arbiters on issues 
purely political. But they wanted the Judges to do “right to all manner of people 
according to law, without fear or favour, affection or ill-will” (Oath under the 
Constitution). While examining the vires of Article 175A of the Constitution and 
its judicial enforcement, we are mindful of the mandate of the oath of office, its 
constraints 
and 
the 
fundamental 
principles 
which 
underpin 
judicial 
independence in the constitutional scheme envisaged by the founding fathers. 
Judicial independence is one of the core values of our Constitution because it is 
inextricably linked with the enforcement of fundamental rights [Article 184 (3) 
and Article 199 of the Constitution] and the rule of law. According an exalted 
position to this value, the Constitution in its very Preamble laid down that, "the 
independence of the judiciary shall be fully secured". The judiciary has not been made 
part of the Executive or the Legislature (Article 7), its separation from the 
executive was made a constitutional command [Article 175(3)] and right to “fair 
trial” is acknowledged as one of the fundamental rights (Article 10A). To further 
buttress this objective, the process of appointment of judges (Article 177) and 
their removal (Article 209) was kept insulated from legislature and the opinions 
of the Chief Justice of Pakistan and Chief Justices of High Courts were given 
Const.P.11/2010 etc. 
12 
weight which now stand judicially defined by this Court in Al-Jehad Trust case 
(PLD 1996 SC 324). Judiciaries in all democratic setups are vulnerable to the 
power of legislatures to create, alter or impair judicial structures including the 
mode of appointing, removing and remunerating the Judges. In our country, like 
in some others as well, this power is tampered with constitutional guarantees 
that restrict legislative control over the judiciary. The Parliament was conscious 
of this scheme, because other than inserting Article 175A, it did not amend any 
other provision on which is built the edifice of judicial independence or the 
provisions relating to the functions of judiciary. Only the appointment process 
has been changed and the avowed objective seems to be to strike a balance 
between judicial independence and democratic accountability/parliamentary 
oversight.  
9. 
It was maintained by the learned counsel appearing for the 
Federation that the Parliament was motivated by higher considerations of liberal 
democracy, the rule of law and the independence of judiciary in passing the 
Eighteenth Amendment. Notwithstanding these noble objectives, serious 
apprehensions have been expressed that this provision may compromise judicial 
independence which require serious consideration. Following aspects of Article 
175A, according to the petitioners, are likely to disturb the overall constitutional 
scheme qua judicial independence and the balance sought to be achieved 
through it, may be tilted in one way. Because: 
(i) 
The Chief Justice of Pakistan is pater familias i.e. the head of 
judiciary. His opinion under the unamended provision was 
held by this Court [in Al-Jehad Trust case (PLD 1996 SC 324)] to 
have primacy in the consultative process initiated by the 
President for appointment of Judges. But under the newly 
inserted provision, the consultative process has been done away 
with and the Chief Justice has just one vote in the Judicial 
Commission whose recommendations can be rejected by the 
Parliamentary Committee.  
 
(ii) 
The Law Minister and Attorney General who represent the 
Executive have been made members of the Judicial Commission 
with weightage equal to judicial members. 
Const.P.11/2010 etc. 
13 
 
(iii) 
In the Parliamentary Committee in the name of parliamentary 
oversight, the Committee has been given the power to reject the 
recommendations of the Judicial Commission which would be 
tantamount to granting veto powers to it. 
 
(iv) 
Four out of eight members of the Parliamentary Committee, 
though members of the Parliament are nominees of the Chief 
Executive i.e. the Prime Minister. The inclusion of the executive 
members in the afore-referred bodies has not only minimized 
the role of the judiciary in the appointment process but is likely 
to politicize the entire exercise and thereby impinge on the 
constitutional guarantees provided to ensure its insularity and 
to restrict the legislative and executive control over it. 
 
(v) 
The issues of elevation of a Chief Justice of a High Court or 
Judge of the said Court to the Supreme Court, if brought before 
the Parliamentary Committee and discussed is likely to be 
violative of Article 68 of the Constitution, which stipulates that: 
 
“No discussion shall take place in [Majlis-e-Shoora 
(Parliament)] with respect to the conduct of any Judge of 
the Supreme Court or of a High Court in the discharge of 
his duties.” 
 
(vi) 
There is a serious omission in clauses (9) & (10) of Article 175A 
as in the event of dissolution of the National Assembly, the 
composition of the Parliamentary Committee would be 
incomplete and there is no provision in  pari materia to the third 
proviso to clause (2B) of Article 213 of the Constitution which 
stipulates that, 
 
“When the National Assembly is dissolved and a vacancy 
occurs in the office of the Chief Election Commissioner, the 
Parliamentary Committee shall comprise the members from 
the Senate only and the foregoing provisions of this clause 
shall, mutatis mutandis, apply.” 
 
10. 
Most of the petitioners who had challenged Article 175A of the 
Constitution raised serious issues regarding the composition of the Judicial 
Commission and Parliamentary Committee and veto power given to the latter. It 
was contended that there was a well known practice, when the unamended 
provision was in vogue that Chief Justice would consult most senior Judges of 
the Supreme Court before finalizing the recommendations. Instead of bringing 
any drastic change, the said practice should have been formalized. It was, 
therefore, suggested during arguments that to ensure that the appointment 
process is in consonance with the concept of independence of judiciary, 
Const.P.11/2010 etc. 
14 
separation of powers and to make it workable, Article 175A may be amended in 
following terms:- 
(i) 
That instead of two most senior Judges of the Supreme 
Court being part of the Judicial Commission, the number 
should be increased to four most senior Judges. 
(ii) 
That when a recommendation has been made by the Judicial 
Commission for the appointment of a candidate as a Judge, 
and such recommendation is not agreed/agreeable by the 
Committee of the Parliamentarians as per the majority of 
3/4th, the Committee shall give very sound reasons and 
shall refer the matter back to the Judicial Commission for 
reconsideration. The Judicial Commission upon considering 
the reasons if again reiterates the recommendation, it shall 
be final and the President shall make the appointment 
accordingly. 
(iii) 
That the proceedings of the Parliamentary Committee shall 
be held in camera but a detailed record of its proceedings 
and deliberations shall be maintained.  
11. 
Mian Raza Rabbani, Advisor to the Prime Minister (Chairman of 
the Special Committee of the Parliament for Constitutional Reforms) while 
speaking on the floor of the National Assembly reiterated the resolve not to alter 
the core values of the Constitution when he said: 
“Madam Speaker! Before I go into the details of this Article, let me 
once again reiterate that one of the essential purposes rather two or 
three of the essential purposes which made up the basis for these 
constitutional reforms was to ensure that the fundamental 
principles of the Constitution are not altered.” 
 
 
12. 
He was conscious of the apprehensions which some may have 
about the provision when at a subsequent occasion he stated that under the new 
Const.P.11/2010 etc. 
15 
system (Article 175A), a name for appointment as a Judge shall originate from 
the Chief Justice of Pakistan. Even learned Attorney General for Pakistan in his 
written submission affirmed this and stated, "the names of the recommendees will be 
initiated in the Judicial Commission by the Hon'ble Chief Justice of Pakistan in 
consultation with the other members/Hon'ble Judges of the Commission" and that "in 
case of rejection of nomination by the Parliamentary Committee, the said Committee shall 
have to state reasons which shall be justiciable." But such fair concessions, it was 
argued, were not enough to fully allay the reservations expressed regarding this 
provision.  
13. 
In view of the arguments addressed by the learned counsel, the 
criticism made with regard to the effect of Article 175A on the independence of 
judiciary and the observations made in paragraphs-8, 9 & 10 as also deferring to 
the parliamentary mandate, we would like to refer to the Parliament for               
re-consideration, the issue of appointment process of Judges to the superior 
courts introduced by Article 175A of the Constitution, inter alia, in the light of the 
concerns/reservations 
expressed 
and 
observations/suggestions 
made 
hereinabove. Making reference to the Parliament for reconsideration is in accord 
with the law and practice of this Court as held in Hakim Khan v. Government of 
Pakistan (PLD 1992 SC 595 at 621).  
14. 
This is for the first time ever in our national, judicial and 
constitutional history that such a serious challenge has been thrown by a cross 
section of society including some premier Bar Associations of the country to a 
legislation which was no ordinary piece of legislation but was a constitutional 
amendment. By making this unanimous reference to the Parliament for               
re-consideration, we did not consider the sovereignty of the Parliament and 
judicial independence as competing values. Both the institutions are vital and 
indispensable for all of us and they do not vie but rather complement each other 
so that the people could live in peace and prosper in a society which is just and 
Const.P.11/2010 etc. 
16 
wherein the rule of law reigns supreme. We can also not lose sight of the fact that 
we, as a nation, are passing through testing times facing multidimensional 
challenges which could be best addressed only through measures and methods 
where societal and collective considerations are the moving and driving force. 
We had two options; either to decide all these petitions forthwith or to solicit, in 
the first instance, the collective wisdom of the chosen representatives of the 
people by referring the matter for reconsideration. In adopting the latter course, 
we are persuaded primarily by the fact that institutions may have different roles 
to play, but they have common goals to pursue in accord with their 
constitutional mandate. 
15. 
Notwithstanding the pendency of these petitions, the constitutional 
provisions under challenge have come into effect. Prior to the Eighteenth 
Amendment, several appointments of Additional Judges have been made in 
various High Courts and the issue of fresh appointments is likely to come up in 
near future. In these circumstances and till such time these petitions are decided, 
Article 175A has to be given judicial enforcement by way of a construction which 
is in consonance with the other constitutional provisions underpinning judicial 
independence. While doing so we take note of the fair stand taken by Mian Raza 
Rabbani, Chairman of the Special Committee of the Parliament for Constitutional 
Reforms and the Attorney General for Pakistan to which reference has been 
made in Para-12 above and hold that Article 175A shall be given effect to in the 
manner as under:- 
(i) 
In all cases of an anticipated or actual vacancy a meeting of the 
Judicial Commission shall be convened by the Chief Justice of 
Pakistan in his capacity as its Chairman and the names of 
candidates for appointment to the Supreme Court shall be 
initiated by him, of the Federal Shariat Court by the Chief 
Justice of the said Court and of the High Courts by the 
respective Chief Justices. 
Const.P.11/2010 etc. 
17 
(ii) 
The Chief Justice of Pakistan as head of the Judicial Commission 
shall regulate its meetings and affairs as he may deem proper.  
(iii) 
The proceedings of the Parliamentary Committee shall be held 
in camera but a detailed record of its proceedings and 
deliberations 
shall 
be 
maintained. 
The 
Parliamentary 
Committee shall send its approval of recommendations of the 
Judicial Commission to the Prime Minister for onward 
transmission to the President for necessary orders. If the 
Parliamentary 
Committee 
disagrees 
or 
rejects 
any 
recommendations of Judicial Commission, it shall give specific 
reasons and the Prime Minister shall send copy of the said 
opinion of the Committee to the Chief Justice of Pakistan and 
the same shall be justiciable by the Supreme Court. 
 
16. 
All cases of fresh appointments of Judges of the Supreme Court, of 
the Federal Shariat Court, of the High Courts and of Additional Judges of the 
latter Courts shall be processed forthwith under Article 175A.  
17. 
To enable the Parliament to proceed and re-examine the matter in 
terms of the observations made above, these petitions are adjourned to a date in 
the last week of January, 2011.  
18. 
The Registrar of this Court shall send a copy of this order to the 
Chairman Senate, the Speaker of the National Assembly, Mian Raza Rabbani, 
Advisor to the Prime Minister/Chairman of the Special Committee of the 
Parliament for Constitutional Reforms and to the Secretary Law & Justice, 
Human Rights Division of Pakistan. 
 
 
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. 
 
JAVED IQBAL, J. 
MIAN SHAKIRULLAH JAN, J. 
 
 
 
Const.P.11/2010 etc. 
18 
 
TASSADUQ HUSSAIN JILLANI, J. 
 
NASIR-UL-MULK, J. 
 
RAJA FAYYAZ AHMED, J. 
MUHAMMAD SAIR ALI, J. 
 
MAHMOOD AKHTAR SHAHID SIDDIQUI, J. 
JAWWAD S. KHAWAJA, J. 
 
ANWAR ZAHEER JAMALI, J. 
 
KHILJI ARIF HUSSAIN, J. 
 
RAHMAT HUSSAIN JAFFERI, J. 
TARIQ PARVEZ, J. 
 
MIAN SAQIB NISAR, J. 
ASIF SAEED KHAN KHOSA, J. 
 
GHULAM RABBANI, J. 
KHALIL-UR-REHMAN RAMDAY, J. 
 
Announced in Open Court on  
the           of October, 2010. 
 
 
 
CHIEF JUSTICE 
 
 
ISLAMABAD 
Khurram Anees P.S./* 
APPROVED FOR REPORTING 
 
