A Karachi-based female lawyer has approached the Supreme Court, challenging the 26th Amendment over concerns related to equality and the undermining of inclusivity.
Advocate Maria Ahmed, through her counsel, Advocate Salman Talibud Din, filed a petition under Article 184(3) and specifically challenged Article 175A(2)(viii), which was introduced through the 26th Amendment.
Article 175A deals with the appointment of judges to the superior courts by the Judicial Commission of Pakistan and the composition of the Commission. Article 175A(2)(viii) states: “A woman or non-Muslim, other than a member of Parliament, who is qualified to be a member of the Senate as a technocrat, is to be nominated by the Speaker of the National Assembly for a term of two years.”
The petition takes issue with Article 175A(2)(viii), which introduces a rotating seat for either a woman or a non-Muslim on the Judicial Commission.
“At first glance, the temporary and rotating position introduced under Article 175A(2)(viii) might appear progressive. However, within the fundamental rights framework of the Constitution, this is not a meaningful advancement but rather less than the bare minimum required,” the petition states.
It contends that such an arrangement under the said Article relegates these groups to tokenistic representation, violating the Constitution’s guarantees of equality, non-discrimination, and inclusion.
“Article 175A(2)(viii) undermines the fundamental rights guaranteed under Articles 4, 9, 25, 27, 34, and 36 of the Constitution by relegating women and non-Muslims to a temporary and interchangeable role in the Commission,” the petition asserts.
The petition highlights the systemic inequities perpetuated by temporary and interchangeable representation, emphasizing that the Constitution mandates substantive equality, which requires consistent and meaningful inclusion, not discretionary and politically influenced nominations.
Advocate Maria maintains that the discretion of the Speaker of the National Assembly to nominate either a woman or a non-Muslim for a two-year term risks politicizing judicial appointments and further marginalizing these groups.
The petition stresses that women and non-Muslims have historically been excluded from leadership roles in Pakistan’s judiciary, a pattern inconsistent with Articles 25, 27, and 34 of the Constitution, which mandate equality, affirmative action, and full participation in national life. By treating their representation as interchangeable, the provision entrenches structural biases rather than addressing them, the petitioner argues.
“The representation of women and non-Muslims is not a favor or privilege; it is a constitutional obligation rooted in the principles of equality and inclusion, as codified in the fundamental rights framework.”
The position for women and non-Muslims under Article 175A(2)(viii) lacks permanence and institutional anchoring, the petition states, adding, “This effectively denies a consistent voice to over 48% of Pakistan’s female population and approximately 3.7% of non-Muslim citizens, thereby conflicting with the Constitution’s recognition of affirmative action to ensure fair representation.”
The petition also cites Pakistan’s commitments to international human rights instruments, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Universal Declaration of Human Rights (UDHR), which obligate the state to ensure full and equitable participation of marginalized groups in governance.
According to the petition, the said Article is in violation of the salient features of the Constitution.
The petitioner requests the top court to declare Article 175A(2)(viii) ultra vires for being in violation of the salient features of the Constitution and the fundamental rights of equality and non-discrimination enshrined therein.
It also calls for directives to ensure that, in the interim, a woman and a non-Muslim are appointed alternately, as well as for the framing of transparent criteria for nominations, ensuring the process is free from political influence and rooted in merit.
The petition further prays that the top court direct the Judicial Commission of Pakistan to frame a clear process for inviting applications for the nomination of a woman and/or non-Muslim by the Speaker of the National Assembly, based on transparent criteria that promote the constitutional principles of equality, fairness, and non-discrimination.