IN THE SUPREME COURT OF PAKISTAN 
 
      
      (Review Jurisdiction) 
 
PRESENT: 
 
MR. JUSTICE MAHMOOD AKHTAR SHAHID SIDDIQUI 
MR. JUSTICE JAWWAD S. KHAWAJA 
MR. JUSTICE KHILJI ARIF HUSSAIN 
 
 
 
MR. JUSTICE TARIQ PARVEZ 
 
Civil Review Petitions Nos.46 & 47 of 2011 in  
Constitution Petitions Nos.10 & 18 of 2011. 
(Against the judgment dated 4.3.2011 passed by this Court 
In Const. Ps. Nos. 10 & 18 of 2011).  
Federation of Pakistan, thr. Secy. M/o Law  
… 
Petitioner in CRPs 46-47/11 
VERSUS 
Munir Hussain Bhatti & others 
 
 
… 
 Respondents in CRP-46/11 
Sindh High Court Bar Association & others   
…  
Respondents in CRP-47/11 
 
In C.R.Ps.46 & 47 of 2011: 
For the petitioners: 
 
Mr. K.K. Agha, Additional Attorney General for Pakistan 
 
 
 
 
Mr. M.S. Khattak, AOR. 
  
For the respondent:  
Mr. Makhdoom Ali Khan, Sr.ASC.  
(In CRP 46/11)  
 
Mr. Faisal H.Naqvi, ASC 
 
 
 
 
Mr. Arshad Ali Ch., AOR. 
 
 
 
 
Assisted by Mr. Saad Hashmi Advocate 
(In CRP 47/11)  
 
Mr. Abid S. Zuberi, ASC. 
 
 
 
 
Mr. Arshad Ali Ch., AOR 
 
 
 
 
Assisted by Mr. M. Munir Khan Advocate 
Date of hearing: 
 
20.04.2011. 
 
 
 
 
J U D G M E N T 
 
Jawwad S. Khawaja, J. We have heard these petitions at length and 
find no grounds to review our  judgment  whereby Constitution Petitions 
Nos. 10 of 2011 and 18 of 2011 were allowed. We would, however, like to 
take this opportunity to address the arguments advanced by the learned 
Additional Attorney General, Mr. K. K. Agha, in support of these Review 
Petitions. To facilitate this task we have, for convenience, dealt with the 
submissions of Mr. Agha under distinct headings.  
CRP 46 & 47 of 2011  
2 
JUDICIAL REVIEW  
2. 
Mr. K. K. Agha agreed that our Constitution was based on a system of 
checks and balances as set out in the judgment under review. He also 
agreed, therefore, that the Committee created under Article 175A of the 
Constitution had to have some checks on it consistent with the 
Constitutional scheme. He gracefully acknowledged in the context, that 
review of the decisions of the Committee by the Court would provide such 
check and will create the requisite balance. He had some hesitation making 
this submission, but only on the score that while arguing the Constitution 
Petitions challenging the 18th Amendment before a seventeen-Member Bench 
of the Court, he had adopted the plea that judicial review in those petitions 
was barred. He felt that accepting this Court’s power of judicial review in 
these cases would be inconsistent with his argument advanced before the 
seventeen-Member Bench challenging the Court’s power of judicial review in 
the said petitions.  
3. 
This is an unfounded concern. The challenge to the Court’s power of 
judicial review in the petitions being heard by the seventeen-Member Bench 
is based on the premise that a Constitutional amendment properly passed by 
Parliament under Article 239 of the Constitution cannot be judicially 
reviewed. Needless to say this aspect of the petitions before the said Bench 
will be addressed in the petitions being heard by it. The present cases, we 
repeat, assume the validity of the 18th and 19th amendments. Judicial review 
in these cases relates to decisions which have been made by the 
Parliamentary Committee purporting to be decisions under Article 175A of 
the Constitution. No challenge has been presented by the petitioners to the 
Article itself. This distinction between judicial review of a constitutional 
amendment and judicial review of an act purported to have been done under 
the Constitution should provide reassurance to Mr. Agha that by 
acknowledging the Court’s power of judicial review in these cases, he is not 
being inconsistent with his argument before the seventeen-Member Bench. 
CRP 46 & 47 of 2011  
3 
THE COMMITTEE AS AN INDEPENDENT CONSTITUTIONAL BODY 
4. 
We can now take up the submissions of Mr. Agha in relation to our 
finding that the Committee cannot be equated with Parliament nor can it be 
treated as a sub-set of Parliament in the manner in which a Parliamentary 
Committee elected and answerable to Parliament can be considered to be 
part of Parliament.  There is ambivalence in the thinking of the Federation. 
This seems to be a result of the appellation of ‘Parliamentary Committee’ 
used in Article 175A and discussed in the judgment under review. The 
mistaken notion apparently has resulted from ignoring the wisdom of the 
Master al-Ghazzali of old and the contemporary thinker S. Idries Shah that 
the container or outward label is not and must not be confused with the 
content if we are to avoid the pitfalls of superficiality and muddled thinking. 
The Bard revered by the English spoke in similar vein a few hundred years 
after al-Ghazzali. With a slight twist to his words we can say, that the 
gainda, a beautiful flower in itself, will not become a rose or acquire its 
attributes and smell as sweet, if called a rose.  Thus, while it may be possible 
for a layman or an uninformed commentator to be misled by an outward 
label, as Judges we would fall into serious error if we were to be inveigled by 
a title alone. In the judgment under review we have given reasons for our 
view that the Committee’s name is irrelevant; it is independent of Parliament 
and cannot be considered its part or be accorded the same status as 
Parliament. No reason has been given by the learned Additional Attorney 
General which can persuade us to depart from this opinion.   
5. 
In this regard, it is also worth noting that Mr. K. K. Agha’s argument 
was that though Article 175A, as originally framed in the 18th Amendment, 
created a misleading impression that the Committee is an independent body, 
the changes brought about in Article 175A by the 19th amendment, had the 
effect of clarifying that the Committee was meant to be part of Parliament. 
This submission is disingenuous and is also in conflict with the Federation’s 
own stance as will be shown shortly. When Mr. Agha was specifically asked 
CRP 46 & 47 of 2011  
4 
to refer to such changes which, according to him, addressed the lacuna 
overlooked in the original Article 175A, he drew our attention to clause (16) 
thereof. This provision reads as under:-  
“175A … 
(16) The provisions of Article 68 shall not apply to the proceedings of the 
Committee”  
Despite our best efforts, we must admit, we have been unable to understand 
how the above clause can counter the reasoning in our judgment or how this 
provision can be taken to mean that the Committee is a body elected by 
Parliament or is accountable to it or is part of it. 
6. 
However, since the learned Additional Attorney General did make an 
attempt to argue this point, it will be appropriate to advert to some extracts 
from the review petition itself which, in our view, correctly state the 
constitutional status of the Committee and go against the position now 
canvassed before us. The Federation, in any event, cannot be allowed to 
argue against its own pleadings. Here it may be noted that the review 
petitions were filed much after the passing of the 19th Amendment and were 
also submitted subsequent to the judgment under review. The Federation 
has averred therein that “this new system of judicial appointments envisaged 
two new independent constitutional bodies being a part of the process” of 
judicial appointments. As specifically pleaded in paragraphs 2 and 3 of the 
review petitions, the first independent constitutional body was the 
Commission while the “other independent constitutional body was the 
Parliamentary Committee” comprised under Article 175A (9) of the 
Constitution. It is quite obvious from these categorical averments in the 
review petitions, that the Parliamentary Committee is acknowledged even by 
the Federation, as an “independent constitutional body”. It should also be 
self-evident that a Constitutional body which is independent in this way 
cannot at the same time be part of Parliament.   
CRP 46 & 47 of 2011  
5 
7. 
There is also ambivalence on the part of the Federation in respect of 
the nature of the Committee and its place in the constitutional order. In this 
regard we can refer to the synopsis of oral submissions which has kindly 
been supplied to us in these cases, by the learned Additional Attorney 
General. These submissions were made by him before the seventeen-Member 
Bench hearing the petitions challenging the 18th Amendment. While defining 
the status of the Committee the position taken by the Federation was that it 
is a ‘constitutional Committee, distinct from an ordinary Parliamentary 
Committee established under the Parliamentary Rules of Business, the special 
Constitutional Committee is not subject to the same rules as a Parliamentary 
Committee and instead is subject to its own rules, which it is entitled to make 
for itself under Article 175A’. This position was re-emphasized by the 
submission that “the Parliamentary Committee is generally a stage in the 
legislative process whereas [the Committee] under Article 175A is not 
concerned with Parliament’s legislative process. It is a distinct Committee 
dealing with a distinct area of the Constitution namely the appointment of 
superior Court Judges”.  
8. 
Clearly, therefore, it is impossible, for the aforesaid reasons, to see the 
Committee as being part of Parliament or to accord to it equivalence with 
Parliament. 
RULE RELATING TO PRECEDENT 
9. 
We may now address the Federation’s contention that our judgment, 
by virtue of Article 189, will have the effect of rendering the Committee 
redundant, for all future cases. While the respective domains/roles of the 
Committee and the Commission will be addressed in a later part of this 
opinion, for the present we can briefly deal with the fundamental rule 
relating to the use of precedent in a common law jurisdiction such as ours, 
as this will show that the Federation’s argument is misconceived. The rule 
which infuses discipline in the working of a common law Court and which we 
have scrupulously adhered to, can be seen from our judgment and in 
CRP 46 & 47 of 2011  
6 
particular paragraph 74 of the concurring opinion where we have consciously 
avoided giving ‘overly broad and sweeping statements on Article 175 as 
amended’ and have, with full awareness of the nature and effect of 
precedent, noted that our ‘job here is to determine the fate of [these] petitions 
before us. And the outcome of these petitions is determined, ultimately, by their 
own facts and circumstances’. This fundamental principle of legal reasoning 
in common law jurisdictions, with which students are familiarised in law 
school, is often overlooked by lawyers and Judges, to the peril of incremental 
and organic growth of the law. It is in this jurisprudential context that 
certain paragraphs in the judgment under review, cited by Mr. K. K. Agha in 
support of his argument and considered later, have to be examined. 
10. 
Mr. Agha rightly referred to Article 189 of the Constitution as 
providing constitutional recognition of the common law principle of binding 
precedent. It will be seen that a decision of the Supreme Court under the 
said Article “shall to the extent that it decides a question of law or is based 
upon or enunciates a principle of law, be binding …” Mr. K. K. Agha’s reading 
of the judgment under review based on his understanding of Article 189 ibid, 
and his conclusion that the Committee has been rendered redundant, is not 
in accord with settled principles applicable to precedent. The error in his 
reasoning can easily be illustrated by adverting to the circumstances of the 
present case. 
11. 
Firstly, it is through reliance on precedent that we have accepted as “a 
principle of law” that the Constitution has to be read as an organic whole and 
that its Articles and separate clauses cannot be seen in decontextualised 
isolation. There appears to be no dispute on this as Mr. Agha himself became 
a forceful votary of this legal principle despite his earlier objection against 
judicial review of the decisions of the Committee, based on the insular 
reading of Article 175A alone. Then, inter alia, by applying the said principle 
of law to Article 175A, we have enunciated a new principle of law, which is 
that the decisions of the Committee are subject to judicial review. This can 
CRP 46 & 47 of 2011  
7 
rightly be termed a principle of law enunciated by us in terms of Article 189 
of the Constitution. While doing so we have carefully remained within the 
ambit which constrains a Court when laying down precedent. The learned 
Additional Attorney General, as noted earlier, has also now acknowledged the 
Court’s power to review the decisions of the Committee. By virtue of Article 
189 this new principle will remain the law until it is revisited. Yet another 
‘principle of law’ which has been enunciated in the judgment under review is 
the delineation of the respective roles of the Commission and the Committee 
under Article 175A. It is here that the Federation appears to have fallen in 
error. The principle that the Commission and the Committee have defined 
roles is precedent. Whether the Committee has performed its role or has 
remained within its domain while making the impugned decisions in the 
circumstances of these cases is not precedent except to the extent a future 
case may arise which is indistinguishable on facts, from these cases. 
12. 
The misconception in Mr. Agha’s reasoning arises when the factual 
determination, based on the specific circumstances of this case, is treated as 
a principle of law in terms of Article 189 ibid. He reads our judgment as 
enunciating a principle of law which renders the Committee redundant. No 
such legal principle, we say with respect to Mr. Agha, has been enunciated 
by us, as is clear from the extract of the judgment under review reproduced 
above and from a number of other passages in the said judgment which 
highlight the factual aspects of this case. Whatever is peculiar and specific to 
the facts and circumstances of this case, by definition cannot be a principle 
of law enunciated by us.  
13. 
What has been stated in this section of our opinion is neither original 
nor is it a product of any creative exercise on our part. These principles can 
be found in any textbook on precedent and legal reasoning in a common law 
jurisdiction. The dynamic of the judicial process which drives evolution of the 
law based on precedent appears to have been overlooked in the Federation’s 
submissions before us. 
CRP 46 & 47 of 2011  
8 
DOMAIN OF THE COMMITTEE - REDUNDANCY  
14. 
The above discussion should to a large degree address the arguments 
of the Federation. But, considering the importance of this case, we may take 
this opportunity to directly deal with the Federation’s stance that through 
the judgment under review, the Committee had been made redundant. This 
argument is not correct as it ignores important parts of the judgment and 
also appears to be based upon a misconception as to the nature and effect of 
precedent as explained above. The learned Additional Attorney General 
adverted to paragraphs 21, 22 and 32 of the lead judgment and paragraphs 
55 and 56 of the concurring opinion to support his argument. According to 
him when these parts of the judgment under review are examined together 
the conclusion is that no meaningful role has been left for the Committee 
and that it has been rendered redundant. I have gone through the cited 
paragraphs of the judgment and find the argument of the Federation to be 
without merit.  
15. 
Let me say at once that the Committee has and can exercise the 
powers which under the earlier dispensation were exercisable by the Prime 
Minister. We have specifically held that “[t]he role which they [the Prime 
Minister and President] were performing in the previous legal set up … is now 
logically to be performed by the Committee”. Therefore, if the Prime Minister’s 
role in the previous appointment mechanism was not considered to be 
meaningless, we fail to see how the Committee, charged with performing the 
same role, can be considered redundant. That the Committee is only an 
“institutionalized forum” for performing the functions which were previously 
the domain and province of the Prime Minister is made clear in our judgment 
more than once. This can be further buttressed if one considers the speeches 
of Mr. Raza Rabbani, Chairman of the Parliamentary Committee on 
Constitutional Reform (PCCR), on the floor of Parliament at the time the 18th 
Amendment bill was being debated. On 6.4.2010, for instance, with the 
object of convincing the members of the National Assembly to approve Article 
CRP 46 & 47 of 2011  
9 
175A, Mr Rabbani said, “in actual fact what is happening is that the functions 
that were being performed by the Prime Minister in terms of the present [pre 
amendment] system of appointment of Judges would be taken over by this 
Parliamentary Committee”. The very same intention was repeated six days 
later on the floor of the Senate on 12.4.2010 when Mr. Rabbani, with the 
same clarity of expression and intent stated that “what in actual fact has 
been done here [in Article 175A] is, that the role that was assigned to the Prime 
Minister in terms of appointment of Judges … has now been assigned to this 
Parliamentary Committee”.   
16. 
It may be noted here that Mr. Raza Rabbani was not just any member 
of Parliament making any odd speech on the floor of the Houses of 
Parliament to put forward his own point of view. He was the Chairman of the 
PCCR. It was he who was steering the Constitutional amendments through 
Parliament. We can presume that within the PCCR, comprised of 27 
members, there would have been discussion and divergent points of view on 
Article 175A before it was given the shape it finally took in the 18th 
Amendment. These divergent views were sorted out which resulted in the 
view expressed by Mr. Rabbani while explaining the function of the 
Committee. It has not been suggested and, in any event, there would be no 
warrant for the premise that the intent of Parliament was anything different 
from what was stated by Mr. Rabbani in Parliament, in the solemn 
proceedings effecting important provisions of the Constitution. It would, 
therefore, be reasonable to rely on Mr. Raza Rabbani, as providing evidence 
of Parliamentary intent. It is such intent after all, which we are engaged in 
ascertaining and in this effort we are immeasurably benefited by what Mr. 
Rabbani said. We have already commented on the relevance of Parliamentary 
proceedings as an aid to interpretation of statutory text. While considering 
the domain and functions of the Committee we should also note that Mr. 
Rabbani was unambiguous in informing Parliament that the members of the 
PCCR “were also mindful of the fact that the manner in which the trichotomy of 
power has been defined in that [Sindh High Court Bar Association] judgment, 
CRP 46 & 47 of 2011  
10 
the balance of that should not be upset”. Our judgment under review has 
ensured that this balance is maintained.   
17. 
The above noted Parliamentary record provides the most clear and 
unequivocal explanation of what role the Committee was meant to perform. 
And since there was no debate on Article 175A in either House when Article 
175A was passed without comment or amendment, we can take comfort in 
the fact that our interpretation of Article 175A matches the intention of 
Parliament as we have held in the judgment under review that, “Parliament 
intended to preserve the delineation of powers in the previous dispensation, 
but vest the role in more diffused bodies than was previously the case”. If we 
have enunciated this general principle of law, it is difficult to see how it can 
be said we have rendered the Committee redundant.  
18. 
Regardless of the above discussion, it must be stressed here that 
though the Commission and the Committee perform essentially the same 
functions as the Chief Justice and the Prime minister in the previous 
dispensation, it would be a mistake to imagine these constitutional bodies as 
simply substitutes for the Chief Justice of Pakistan and the Prime Minister 
respectively. The base of decision-making has been substantially broadened. 
Thus, we now have in the Commission, members of the Bar and the 
governing Executive involved in the decision-making process along with 
seven members of the Judiciary who did not have a Constitutional role in the 
previous dispensation. This provides capacity to the Commission which 
enables it to have information about, and consider what in our jurisprudence 
are referred to as ‘antecedents’, of a potential nominee for judicial office. This 
should not be taken to mean that the Committee’s role in considering the 
antecedents of such nominee stands eliminated. The Committee may also 
examine the antecedents of a nominee and form an opinion as to his 
suitability for judicial office. Such opinion, howeve r, must conform to 
standards which pass judicial scrutiny because the decisions of the 
Committee are subject to judicial review.  
CRP 46 & 47 of 2011  
11 
19. 
There may, therefore, be an overlap of functions of the Commission 
and the Committee in, for instance, assessing and evaluating the 
antecedents of a nominee for judicial office. But this overlap does not 
eliminate the role of the Committee or make it redundant. It simply requires 
the Committee to engage in a conscious and rigorous exercise of its own 
which will ensure that a person who has dubious antecedents is filtered out 
in the selection and appointment process. It is precisely this function which 
has been emphasised on behalf of the Federation in the synopsis of 
arguments referred to above wherein it has been said, inter alia, that the 
Committee may “be concerned in calling for intelligence reports which was the 
function of the Governor under the old system …”. 
20. 
However, if the Committee, as in the present cases, does not engage in 
any exercise at all other than picking up an observation of one member of the 
Commission and chooses to base its decision on it without more, it will have 
fallen in error. The Committee has to perform its role in a meaningful way 
and with the application of mind which will withstand judicial scrutiny in 
accordance with recognized standards. The Federation nevertheless, wants 
us to hold that this verdict of the Committee is sacrosanct despite these 
shortcomings. To give such extraordinary precedence to the verdict of the 
Committee, 
based 
on 
nothing 
more 
than 
tentative 
observations 
(subsequently reconsidered) of one member of the Commission is not 
warranted. The appointment of Judges is too serious a matter to be dealt 
with in such casual fashion. The requirement of Article 175A is that the 
Committee shall give “its decision with reasons” in the event it does not 
confirm a nomination made by the Commission. Unfortunately, this has not 
been done. Instead the Committee’s decision making function, entrusted to it 
by Article 175A, has in effect, been outsourced. It is the unquestioning 
subservience of the Committee to the observations of the Chief Justices of 
Punjab and Sindh, without examining the basis of such observations, which 
we have guarded against in our judgment under review. The reasons for this 
CRP 46 & 47 of 2011  
12 
view have been stated in the judgment under review, but can now be further 
elaborated.  
21. 
It is clear that the observations which form the sole basis of the 
Committee’s decision represent at best the pre-deliberation views of the Chief 
Justices of the two High Courts. These views may or may not have an 
empirical basis. It would be for the Commission, assembled as a collegium to 
examine the same and to decide whether or not these views adhere to the 
objective standards considered appropriate or relevant by the collegium. This 
is the essential function of a collegium responsible for making a collective 
decision. Our jurisprudence is familiar with instances of collective decision 
making, be these in University Syndicates, Boards of Trustees/directors or 
statutory authorities etc. The hallmark of such decision-making is that each 
member of the collegium brings his own views – informed or uninformed, 
subjective or reasoned – to the collegiate body. It is there that all views are 
either synthesised into an objective decision, or a member of the collegiate 
body, who disagrees with the collective view, records his dissent.  
22. 
In the facts of this case, the relevant collegiate body, the Commission, 
unanimously agreed to recommend the contentious names after discussion. 
The Committee, therefore, could not rely on the pre-discussion views of the 
one member of the Commission respectively in each case, without providing 
any independent reasoning. The Committee did not have any information 
before it for treating the tentative views of the two Hon’ble Chief Justices as 
empirical fact nor did it consider the objective standards which informed the 
unanimous opinion of the Commission. It is this aspect of the petitions 
which has been of concern to us and has justifiably been given importance. 
The Committee could still have disagreed with the Commission within the 
ambit previously reserved for the Prime Minister, if it had any reasons of its 
own to justify a different opinion. This process, if adhered to, would have 
been consistent with the role which was earlier envisaged for the Prime 
Minister. The outcome of the Constitution Petitions decided by us is a result 
CRP 46 & 47 of 2011  
13 
of these specific circumstances. It follows, therefore, that if the facts are 
different in any subsequent case the outcome of such case may also be 
different. This is precisely what we have said in para 74 of the concurring 
opinion, which in relevant part is reproduced as under:- 
“74. … We are not here engaged in an academic exercise or in a 
discourse to expound general constitutional principles of political 
philosophy. Our job here is to determine the fate of the petitions 
before us. And the outcome of these petitions is determined, 
ultimately, by their own facts and circumstances.” (emphasis is 
ours).  
 
The same view has been repeatedly emphasised in the judgment under 
review where we have underscored this by noting that “we have consciously 
confined our consideration of the petitions and arguments advanced, to the 
specific facts and circumstances of [these] cases”. 
23. 
Therefore, if in future the Committee decides to subordinate itself to 
the opinion of one member of the Commission, it must, under accepted 
norms of judicial scrutiny, give its own reasons for making this choice. 
Without such reasons which are capable of withstanding judicial scrutiny, 
the opinion of the Committee can only be termed as unreasoned and 
arbitrary. Our jurisprudence as a rule strikes down arbitrary and 
unreasoned exercise of discretionary power, particularly when the law 
requires that reasons be given by the decision maker for such exercise of 
power. Reference can be made to the case titled Chief Justice of Pakistan 
Iftikhar Muhammad Chaudhry versus President of Pakistan through Secretary 
and others (PLD 2010 SC 61) if authority is required for this established 
principle of law. Thus, if at all, a legal principle is to be deduced from our 
judgment in the light of Article 189, it would be that the Committee does not 
have untrammelled powers to choose, without sound reasons, the 
unconsidered views of one member of the Commission out of thirteen, while 
discarding the considered views of all thirteen members together or of the 
CRP 46 & 47 of 2011  
14 
remaining twelve members. The decisions of the Committee must meet the 
usual and well recognized standards of objectivity and application of mind, 
amongst other standards.  
24. 
It must also be noted here that even Mr. Agha rightly acknowledged 
that allowing the Committee to pick and choose between the views of 
members of the Commission would amount to unwarranted slippage into the 
territory, which Article 175A has endeavoured to avoid. He nevertheless 
advanced the argument that some extra weight should be given to the 
opinion of the Chief Justices of the two High Courts because they would be 
in a better position to make an evaluation of the capabilities and potential of 
a nominee. This is not necessarily a correct premise because it would be 
equally arguable that the five senior most Judges of this Court would have a 
better ability to assess such potential, having had the occasion to sit in 
appeal over decisions of the nominees. Giving weightage to the views of one 
member of the Commission, apart from being questionable on the said 
ground, will also have the effect of negating the principle of collegiate 
decision-making introduced in the Constitution by Article 175A. As Mr. 
Makhdoom Ali Khan said with some justification, this would emasculate the 
Commission, reducing its power to selection of nominees only, but otherwise, 
in matters of actual appointment, it would be rendered subordinate to the 
Committee. 
25. 
Mr. K. K. Agha then prayed that we should identify areas left open for 
the Committee for cases which may arise in the future. Consistent with our 
views expressed in paragraph 74 ibid, we will not speculate or play 
clairvoyant or gaze into crystal balls. We, therefore, will not make an attempt 
to provide for all possibilities or future eventualities. As was aptly put by 
Benjamin Cardozo, an American jurist and judge in the last century in his 
lecture on “Adherence to Precedent”, “we have to pay in countless ways for 
the absence of prophetic vision. No doubt the ideal system, if it were 
attainable, would … supply for every conceivable situation, the just and fitting 
CRP 46 & 47 of 2011  
15 
rule. But life is too complex to bring the attainment of this ideal within the 
compass of human powers”. (Cardozo, B. J. Adherence to Precedent (1921) 
New Haven: Yale University Press)  We have already stated that the 
Committee has the powers indicated above. It only has to adhere to 
established standards in arriving at its decisions to ensure that such 
decisions withstand judicial scrutiny. The learned Additional Attorney 
General then advanced the argument that the decisions of the Commission 
must also state reasons and be subject to judicial review. This question does 
not arise in these petitions. We need not, therefore, speculate on an issue not 
before us.   
26. 
The above discussion, we expect, will have demonstrated that rather 
than the tenor and context of our judgment, it is the mistaken reading of the 
same and the flawed understanding of Article 189 of the Constitution which 
has resulted in the unwarranted impression, that as a legal principle we have 
rendered the Committee redundant. 
PREJUDICE IN THE 18th AMENDMENT CASE 
27. 
The next contention of the learned Additional Attorney General was 
that the various parties, including the four Advocates General, in the 
petitions challenging the 18th Amendment, pending before a seventeen-
Member Bench, stand prejudiced by the judgment under review as no notice 
was given to them before deciding the Constitution Petitions. This argument 
is based on the premise that certain issues, which were argued before the 
larger bench in the said case, had yet to be finally determined; therefore, 
instead of deciding those issues in the instant case, this bench should have 
either clubbed these proceedings for adjudication with the 18th amendment 
cases or waited for the final decision in that case.  
28. 
In this regard, Mr. K. K. Agha’s submissions focused on the 
justiciability of the decisions of the Parliamentary Committee. We have 
considered this argument and find it to be without force. Firstly, the 
justiciability of the decisions of the Committee was not a central issue in the 
CRP 46 & 47 of 2011  
16 
18th amendment cases; any submission thus made by the Federation 
regarding the justiciability of the Committee’s decisions was only ancillary to 
the argument which concerned this Court’s power to judicially review a 
constitutional amendment. It must be stated clearly that this issue has not 
been touched by the judgment under review and so is a matter which 
remains to be settled by the larger Bench in the 18th amendment cases.  
29. 
Moreso, it cannot be imagined that pending the decision in the said 
cases, any matter relating to the countless submissions made before the 
larger Bench cannot be adjudicated by this Court. The Constitution (18th 
Amendment) Act, 2010 introduced amendments in 97 Articles of the 
Constitution. Many of these provisions have been challenged before the other 
Bench. The challenged provisions concern important subjects. It would, 
therefore, be inappropriate to suspend the application and interpretation of 
the same for as long as the 18th Amendment cases remain pending. 
30. 
Similarly, Mr. K. K. Agha’s submission that the impugned judgment 
has prejudiced the Federation because it has made observations relating to 
the scope of ouster clauses, independence of the judiciary, judicial review, 
etc. does not carry much weight. Our observations regarding these matters 
are based on the limited context and issues arising in these cases. The 
existing legal corpus has been used while rendering our judgment. This 
treasure trove is available to all Courts within our jurisdiction at all times. 
We, therefore, do not see any prejudice being caused to the Federation as a 
result of our adjudication. As to prejudice to the other parties, none of them 
has approached us with any grievance that they have been prejudiced by our 
judgment.  
10-A  MAINTAINABILITY   
31. 
Mr. Agha then referred to the case of Wukala Mahaz Barai Tahafaz 
Dastoor and another versus Federation of Pakistan and others (PLD 1998 SC 
1263) and argued that Article 199 of the Constitution was available to the 
petitioners and, therefore, Article 184 (3) should not have been used because 
CRP 46 & 47 of 2011  
17 
the power thereunder has to be sparingly used. He also added that Article 
10-A which has been inserted in the Constitution through the 18th 
Amendment has provided for fair trial and due process. According to him, 
due process includes a right of at least one appeal. As such if this Court 
exercises power under Article 184 (3) of the Constitution, this will result in 
denial of a right of appeal to the Federation. He also pointed out that in the 
case of Sindh High Court Bar Association versus Federation of Pakistan (PLD 
2009 SC 879), the petitioner Association had first approached the Sindh 
High Court and thereafter the appellate jurisdiction of this Court had been 
invoked since the Association was aggrieved of the High Court judgment.  
32. 
Mr. Agha’s submission was that the failure of the Court to consider 
Article 10A and the consequent denial of the implied right of at least one 
appeal and the implications of this omission have  not been examined in the 
judgment under review. This is a new argument which was never raised 
during arguments in the Constitution Petitions. In principle, this is reason 
enough to dismiss this argument, since it has long been settled that new 
issues are not to be entertained at the Review stage. However, even if we were 
to consider this argument, it would have made no difference to the outcome 
of the review since it is misconceived because it ignores the express 
provisions of Article 184 (3) of the Constitution.  
33. 
It is clear from Article 184 (3) that the Constitution has expressly 
empowered this Court to exercise the powers vested in a High Court under 
Article 199, subject to the two-fold rider that the matter should be one of 
public importance and should relate to the enforcement of fundamental 
rights. In the present cases, we have already exercised our jurisdiction under 
Article 184 (3) ibid and find no justification for recalling the judgment under 
review, solely for the purpose of directing the respondents Nos. 1 and 2 
(petitioners in the Constitution Petitions) to approach the High Court and 
then to approach this Court again if aggrieved by the decision of the High 
Court. 
CRP 46 & 47 of 2011  
18 
34. 
In view of the foregoing discussion, we find no justification for 
reviewing our judgment. These Review Petitions are, therefore, dismissed.  
35. 
Keeping in mind the requirements of Articles 28 and 251 of the 
Constitution, and the fact that a gist of the judgment under review was also 
issued in Urdu, we propose to issue a gist of this opinion in Urdu which will 
be an appendix hereof. This will be done shortly.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Judge 
 
Judge 
 
Judge 
 
Judge 
ISLAMABAD 
20th April, 2011. 
A. Rehman /�  
APPROVED FOR REPORTING.  
 
