26th Constitutional Amendment

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What is the 26th Constitutional Amendment?​

The government has made hectic efforts since last month to bring what it says are judicial reforms in the country's "wider interest". This piece details those changes to the Constitution.

Dawn.com
October 20, 2024

Since last month, the ruling coalition had been intensively lobbying political parties in parliament to gain backing for constitutional amendments, primarily focused on the judiciary.

The 26th Constitutional Amendment Bill, also known as the Constitutional Package, is legislation aimed at taking away the Supreme Court’s suo motu powers, setting the chief justice of Pakistan’s (CJP) term at three years, and empowering the prime minister to appoint the next CJP from among the three most senior SC judges.

The Amendment was passed by the Senate with a two-thirds majority on Sunday and then with an equivalent majority by the National Assembly early Monday morning.

An earlier attempt in September by the ruling PML-N to bulldoze the amendments did not succeed as it failed to win over the JUI-F and the legislation could not be tabled despite houses being in session.

A special parliamentary committee formed last month — which has the representation of all parties, including the PTI — discussed various proposals over the past few weeks.

Maulana Fazlur Rehman, chief of the Jamiat Ulema-i-Islam-Fazl (JUI-F), played a key mediating role as the opposition voiced concerns about the proposed amendments as well as alleged intimidation of its lawmakers for their support for the draft.

A major bone of contention was a proposed Federal Constitutional Court, which the PTI opposed and Fazl demanded a constitutional bench instead, which the draft now incorporates.

While the JUI-F had reached an agreement on the draft with the PPP earlier this month, the PTI said it had “no objections” to the final draft but officially boycotted the voting procedure.

The initial draft had reportedly proposed 56 amendments. However, after many deliberations among the parties, these were reduced to 27 in the final version passed by the NA.

This piece details those amendments mentioned in the bill, a copy of which is available with Dawn.com. They are to “come into force at once”.

The greatest number of amendments are to Article 175A, which deals with the process of appointment of judges to the Supreme Court, high courts and the Federal Shariat Court (FSC).

Under amendments proposed to clause 3 of Article 175A, instead of the president appointing the “most senior judge of the Supreme Court” as the CJP, the top judge will now be “appointed on the recommendation of the Special Parliamentary Committee from amongst the three most senior” SC judges.

The committee, constituted for the same purpose, shall send the name of the nominee to the prime minister who shall forward the same to the president for the appointment.

Clause 8 earlier said the JCP may forward its nominations for each vacancy of SC, high court, or FSC judges to an eight-member parliamentary committee, which would have sent to the premier who would forward it to the president.

Under an amendment to the clause, the JCP will now send its nominations directly to the “prime minister who shall forward the same to the president for appointment”.

Accordingly, clauses 9, 10, 11, 12 and 13 pertaining to the older eight-member committee shall be omitted.

Under a new clause 3A, the Special Parliamentary Committee shall consist of the following twelve members, namely:

(i) eight members from the National Assembly; and

(ii) four members from the Senate:

“Provided that when the National Assembly stands dissolved, the total membership of the committee shall consist of the members from the Senate only mentioned in paragraph (ii) and the provisions of this Article shall, mutatis mutandis, apply,” the draft adds.

Under clause 3B, the “parliamentary parties shall have proportional representation on the committee, based on their strength in Majlis-i-Shoora (Parliament), to be nominated by their respective parliamentary leaders. The chairman and the speaker of the National Assembly, as the case may be, shall notify members of the committee”.

Under clause 3C, the Committee shall send the nomination, “by majority of not less than two-thirds of its total membership, within 14 days prior to the retirement” of the CJP.

The draft adds: Provided that the first nomination under clause (3), after the 26th Amendment is in force, shall be sent “within three days prior to the retirement” of the top judge.

Under a new clause 3D, “no action or decision taken by the Commission or the Committee shall be invalid or called in question only on the ground of existence of a vacancy therein or of the absence of any member from any meeting thereof”.

Clause 3E states that the committee’s meetings shall be held in-camera and the record of its proceedings shall be maintained.

According to clause 3F, the provisions of Article 68, which bars lawmakers from discussing the conduct of any SC or high court judge in the discharge of their duties, “shall not apply to the proceedings of the committee”.

 

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JI to file petition against 26th Constitutional Amendment​

Hafiz Naeem criticizes government and PTI over the approval of the 26th Constitutional Amendment

News Desk
October 24, 2024

Hafiz Naeem JI

Jamaat-e-Islami Pakistan (JI) chief Hafiz Naeem-ur-Rehman has criticised the government and Pakistan Tehreek-e-Insaf (PTI) over the approval of the 26th Constitutional Amendment, announcing plans to challenge it in court.

Speaking to media in Lahore on Wednesday, Hafiz Naeem-ur-Rehman said JI had warned PTI against getting involved with others on the amendment from the start. “We told PTI not to fall into anyone’s trap,” he said.

The JI chief expressed concern over PTI’s cooperation with Jamiat Ulema-e-Islam-Fazl (JUI-F) leader Maulana Fazlur Rehman, questioning the party's stance. “If they were in opposition, why did they agree to it?” he added, calling the matter "suspicious."

Rehman accused the government of manipulating the situation to pass the amendment, stating that parties which should have taken a stand on Form 47 failed to do so. He also condemned those involved in alleged vote-buying during the process, saying, “Their names will not be remembered kindly in history.”

“This amendment has allowed a takeover of the judiciary,” he warned, declaring that Jamaat-e-Islami has decided to approach the judiciary over the issue. He criticised the Pakistan Democratic Movement (PDM) for pushing the amendment through, calling it an unfair move.

In reference to PTI’s involvement, Hafiz Naeem-ur-Rehman questioned why the party had submitted names to the committee if it opposed the amendment. “It raises suspicions when you submit names but then don’t participate,” he said.

Rehman also expressed concern over political prisoners in Pakistan, urging the government to release them. "Rather than enforcing the law, people are imprisoned on political grounds,” he said. He further called for steps to be taken to ensure their release, describing it as a positive action.

 

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Unpacking the amendment​

Ahmed Bilal Mehboob
October 27, 2024

SUCCESSIVE governments and parliaments in Pakistan have appeared obsessed with constitutional amendments related to the judiciary, especially the superior judiciary. Our parliament has so far passed 23 constitutional amendments.

Formally these are counted as 26 despite the fact that three (the ninth constitutional amendment of 1985, the 11th of 1989 and the 15th of 1998) were introduced but never passed. Out of these 23 amendments, a majority of 13 or 56 per cent have to do entirely or partly with the judiciary.

Eight amendments almost exclusively deal with the judiciary, while the remaining five are a mixed bag with a number of subjects including the judiciary. In stark contrast, India’s parliament has passed 106 constitutional amendments so far and only 11 or a little over 10pc deal with the judiciary.

These amendments passed in Pakistan can be viewed in the context of the ever-present power tussle between the executive and the judiciary. Since the executive is a subset of parliament in a parliamentary democracy practised in Pakistan, and a majority of parliamentarians are associated with the executive, parliament and its committees do not exercise any real oversight of the executive.

The majority ruling party or parties expect their parliamentarians to go soft on their government during the proceedings of the plenary and standing committees; almost always, the members seem to oblige. In such a scenario, the only other institution which can and should independently hold the federal and provincial governments to account is the judiciary, especially the high courts and the Supreme Court.

Most governments are, therefore, keen on finding a way to blunt the judicial weapon of accountability — hence, such a large percentage of judiciary-related constitutional amendments in Pakistan.

To be fair, however, it has not always been the judiciary on the receiving end; there are times when the judiciary also apparently ‘encroaches’ on the turfs of parliament and the executive. This description was used by Asif Saeed Khosa, a former chief justice of Pakistan, who repeatedly pleaded for a ‘grand dialogue’ to check encroachment by the judiciary, parliament, the executive, the military and intelligence agencies in each other’s domain.

It was the Supreme Court which endorsed the death sentence of former prime minister Zulfikar Ali Bhutto in 1979. It was also the same apex court, of course comprising different judges, which declared in 2024 that Mr Bhutto was not given a fair trial by the Lahore High Court and the Supreme Court.

The Supreme Court also sacked two elected prime ministers of Pakistan; Syed Yousuf Raza Gilani in 2011 and Nawaz Sharif in 2017 on grounds largely believed to be less than legitimate. Chief justice Saqib Nisar’s Supreme Court went on to disqualify Nawaz Sharif for life and to hold him ineligible to head his party the PML-N, although there was no such provision in the Constitution. Justice Umar Ata Bandial’s Supreme Court grossly misinterpreted the constitutional provision of Article 63-A about the defection of parliamentarians. All such judgments had to be later reversed. The Supreme Court is also criticised for upholding four grossly unconstitutional acts of dismissal of elected governments and military takeover.

Most governments want to find a way to blunt the judicial weapon of accountability.

This is the background against which the 26th Amendment was proposed and eventually passed by parliament. The bill was first introduced in the Senate on Sunday, Oct 20, and the hectic process of going through the first, second and third readings continued till a little before midnight. The process concluded in the National Assembly in the early hours of Monday, Oct 21. The president assented to the law and the Act of Parliament was notified in the Gazette of Pakistan the same day.

The bill could be partly categorised as ‘reactive’ to the real or perceived ‘encroachment’ by the judiciary and partly ‘preventive’ to forestall possible future acts of the judiciary, which may threaten the existence of the current government and National Assembly, with some ministers saying on media that they expected such action by a section of the judiciary after the retirement of chief justice Qazi Faez Isa on Oct 25, 2024. This explains the indecent haste with which the package of constitutional amendments was rushed through the two houses of parliament.

The 26th Amendment has either amended, substituted, or added 25 articles and one schedule of the Constitution out of which only nine articles deal with subjects other than the judiciary. Three of the amended articles deal with religious provisions and may be categorised as ‘riders’ using the American slang for amendments incorporated to win the support of more legislators and political parties for the package. These three amendments were proposed by Maulana Fazalur Rehman’s JUI-F.

The most important changes introduced in the Constitution through the amendment include the appointment of the Supreme Court chief justice through a 12-member parliamentary committee, instead of the senior-most judge of the court automatically becoming the top judge; the retirement of the chief justice at the age of 65 or on completing a three-year term, whichever occurs first; the introduction of constitutional benches in the apex court to be constituted by the Judicial Commission from time to time and in the high courts, subject to the approval of the respective provincial assemblies; reconstitution of the 13-member Judicial Commission after merging the erstwhile parliamentary committee in it; an annual performance evaluation of high court judges by the Judicial Commission; provision for a secretariat headed by a secretary for the commission; and lowering the minimum age to qualify for becoming a high court judge from 45 to 40 years.

These amendments, no doubt, increase the influence of the legislature and the executive in key aspects of the judiciary. Will the legislative and executive branches use the newly acquired powers maturely and strictly on the basis of merit, or allow personal and political considerations to colour their judgments? The jury is out on this question.

The writer is president of the Pakistan-based think tank Pildat.

 

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26th Amendment, new CJP and reforms​

Huzaima Bukhari | Dr Ikramul Haq | Abdul Rauf Shakoori
October 25, 2024

The Constitution (Twenty-sixth Amend-ment) Act, 2024 [26th Amendment], passed in utmost haste by the Parliament on October 21, 2024 receiving the assent of President of Pakistan on the same day, claims to bring “much-needed reforms in country’s legal framework, enhancing judicial transparency, and promoting the welfare of its citizens”, is being severely criticized by proponents of an independent judiciary.

The 26th Amendment has introduced several provisions that purport to fix the judicial system, ensuring it operates within democratic principles, reinforcing the integrity of Pakistan’s state institutions.

One of the most noteworthy aspects of the 26th Amendment is the inclusion of Article 9A, which enshrines the right to a clean and healthy environment as a constitutional guarantee.

This addition reflects Pakistan’s commitment to global environmental standards and acknowledges the importance of safeguarding natural resources for future generations. By embedding this right within the 1973 Constitution, the government has set a praiseworthy precedent for prioritizing environmental protection, ensuring that future policies align with the nation’s duty to provide a healthy environment for all.

The 26th Amendment has devised a new procedure of judicial appointments by amending Article 175A of the Constitution—changing the composition of Judicial Commission of Pakistan by including members of Parliament having majority in any decision making process.

By allowing both government and opposition members to have a voice in this process, the amendment ensures that parliament has supremacy over judiciary that earlier had absolute say in selection process of judges of higher judiciary. This inclusion, one hopes, will bring transparency and accountability, making the judicial system more representative and reducing chances of bias or undue influence.

Another significant aspect of the 26th Amendment is the introduction of new guidelines regarding the appointment of the Chief Justice of Pakistan (CJP). Under the revised framework, instead of the senior-most judge automatically assuming the role, a parliamentary committee will select one of three nominees.

This change aims at strengthening reliability of the appointment process by allowing a broader range of candidates to be considered for this crucial position. The main idea behind this change is to avoid sole reliance on seniority, ignoring merit, experience, etc. and selecting the individual best-suited for the highest judicial position.

Subsequent to the approval of 26th Amendment, Justice Yahya Afridi was nominated as Pakistan’s next CJP on October 22, 2024 and notified by President the next day —creating hope for stability at a critical time for the nation. With his extensive experience, demonstrated commitment to upholding rule of law, an unblemished legal career, praised by all for his integrity, fairness, and unshakable dedication to the principles enshrined in the Constitution, makes Justice Yahya Afridi an ideal candidate to lead the judiciary.

As the newly appointed CJP, Afridi carries the important responsibility of addressing some of the key challenges facing Pakistan’s judiciary. One of his foremost tasks would be to ensure the effective enforcement of the 26th Amendment.

This includes overseeing the reformed judicial appointment process, ensuring that it functions in a transparent and accountable manner, and upholding the principles of merit and integrity in judicial appointments. His leadership in this area will be critical in enhancing public trust in the judiciary and independent operation of the courts, without political interference.

Another essential task for Justice Afridi would be addressing the significant backlog of cases that have long plagued the country’s courts.

By introducing structural reforms like constitutional benches and streamlining judicial processes, Justice Afridi can make organized efforts to clear the backlog and to see that litigants receive timely justice. His commitment to upholding efficiency within the judiciary will be key to reducing the long-standing issue of delayed justice, which has often eroded public confidence in the legal system.

The 26th Amendment also introduces a more structured approach to judicial performance evaluations, ensuring accountability and continuous improvement within the judiciary. With these reforms, the underperforming judges will be given the opportunity to enhance their work before any disciplinary measures are considered.

As CJP, Justice Afridi can play a vital role in implementing these performance evaluations and ensuring that the judiciary maintains high standards of professionalism and dedication to the law. This will contribute to a more efficient and respected judicial system, with judges held to clear and consistent standards.

The 26th Amendment further emphasizes judicial restraint, particularly with respect to the exercise of Suo Motu powers. Introduction of a three-member judicial committee to approve such notices promotes the idea that the judiciary must act collectively and thoughtfully when intervening in political or administrative matters.

Justice Afridi’s leadership will be crucial in ensuring that these powers are used judiciously, maintaining the balance between judicial intervention and respect for separation of powers. His three-year tenure will likely see the judiciary exercise greater care in its decisions, and in protecting the country’s democratic structure.

The new CJP will also have an important role to play in making Pakistan’s judiciary a model for efficiency and transparency, regardless of regional disparities. With the 26th Amendment introducing provisions for case transfers between high courts, Justice Afridi’s oversight would enable this mechanism to operate smoothly and fairly.

This would guarantee that cases are heard in a timely manner, and that justice is accessible to all citizens.

Beyond these immediate responsibilities, Justice Afridi’s appointment comes at a critical juncture in Pakistan’s judicial history. With the nation passing through legal and political transformations, the judiciary will be instrumental in ensuring that these changes are implemented smoothly.

 

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