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.
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.

Today (October 20), the draft of the bill was passed by the Senate with a two-thirds majority. The bill is now expected to be passed by the National Assembly, a session for which is currently underway.

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 — had been discussing various proposals.

Maulana Fazlur Rehman, chief of the Jamiat Ulema-i-Islam-Fazl (JUI-F), has been playing 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 22 in the final version that landed in the parliament.

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”.

Appointment of CJP; expansion of parliamentary committee
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”.

Under clause 3G, the committee “may make rules for regulating its procedure”.

Subsequently, clauses 15, 16, and 17 of Article 175A — which pertained to a previous eight-member parliamentary committee and read the same as clauses 3E, 3F, and 3G — will be omitted.

For clause (4) of Article 175A which previously empowered the JCP to make rules regulating its procedure, the draft proposes that the JCP may now “make rules regulating its procedure including the procedure and criteria for assessment, evaluation and fitness for appointment of judges”.

The word “or a committee” shall be omitted from clause 14, which earlier read: “No action or decision taken by the [JCP] 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.”

Under more judicial reforms, the CJP’s term has been limited to a maximum of three years.

The change has been introduced to Article 179, which will now read: “A Judge of the Supreme Court shall hold office until he attains the age of 65 years, unless he sooner resigns or is removed from office in accordance with the Constitution.

The above has the condition that the CJP’s term “shall be three years or unless he sooner resigns or attains the age of 65 years or is removed from his office in accordance with the Constitution, whichever is earlier”, as well as provided further that the top judge, “on completion of his term of three years, shall stand retired notwithstanding his age of superannuation”.

SC, high court powers
Another notable change has been made to Article 184, which deals with the apex court’s original jurisdiction, taking away the SC’s suo motu powers.

The following provision is to be added: “Provided that the Supreme Court shall not make an order or give direction or make a declaration on its own or in the nature of suo motu exercise of jurisdiction beyond the contents of any application filed under this clause.”

Under a tweak to Article 186A, the apex court can now transfer cases from high courts to itself.

It will now read: “The Supreme Court may, if it considers it expedient to do so in the interest of justice, transfer any case, appeal or other proceedings, pending before any high court to any other high court or to itself.”

After an amendment to clause 2 of Article 185, which deals with the SC’s appellate jurisdiction, an appeal shall lie to the SC from any judgment, decree, final order or sentence of a high court “if the amount or value of the subject-matter of the dispute in the court of first instance was, and also in dispute in appeal is, not less than one million rupees or such other sum as may be specified in that behalf by Act of [Majlis-i-Shoora (Parliament)]”, rather than “not less than fifty thousand”.

In clause 1 of Article 187 (Issue and execution of processes of Supreme Court), the following provision is to be added: “Provided that no order under this clause shall be passed otherwise than in pursuance of any jurisdiction vested in and exercised by the Supreme Court.”

In a tweak made to high courts’ jurisdiction under Article 199, a new clause 1A is to be inserted, taking away their suo motu powers.

Clause 1A reads: “For removal of doubt, the high court shall not make an order or give direction or make a declaration on its own or in the nature of suo motu exercise of jurisdiction beyond the contents of any application filed under clause 1.”

Formation of constitutional benches in SC
A new Article 191A (Constitutional Benches of the Supreme Court), is to be inserted into the Constitution for the formation of these judicial benches.

Clause 1 reads: “There shall be Constitutional Benches of the Supreme Court, comprising such Judges of the Supreme Court and for such term, as may be nominated and determined by the Judicial Commission of Pakistan, from time to time, provided that the Constitutional Benches may comprise an equal number of Judges from each province.”

Under clause 2 of Article 191A, the most senior judge among the judges nominated under clause 1 shall be the Presiding Judge of the Constitutional Benches.

Clause 3 restricts SC benches other than Constitutional benches to “exercise following jurisdictions vested in the Supreme Court”, namely:

(a) original jurisdiction of the Supreme Court under Article 184;

(b) appellate jurisdiction of the Supreme Court under clause 3 of Article 185, where a judgment or order of a high court passed under Article 199 involves the constitutionality of any law or a substantial question of law as to the interpretation of the Constitution; and

Under clause 4, for the purposes of clause 2, a bench comprising not less than five judges — to be nominated by a committee consisting of the Presiding Judge and the next two most senior judges from amongst the judges nominated under clause 1 — shall hear and dispose of such matters.

According to clause 5 of Article 191A, “all petitions, appeals or review applications against judgments rendered or orders passed, to which clause 2 applies, pending or filed in the Supreme Court prior to commencement” of the 26th Amendment would now stand transferred to the Constitutional Benches and shall only be heard and decided by benches constituted under clause 3.

Clause 6 empowers the judges nominated in Clause 1 to make rules regulating the practice and procedure of the Constitutional Benches, “notwithstanding anything contained in the Constitution but subject to law”.

Constitutional benches in high courts
A new Article 202A is to be inserted for the formation of constitutional benches in the high courts.

Its clause 1 reads: “There shall be Constitutional Benches of a high court, comprising such judges of a high court and for such term, as may be nominated and determined by the Judicial Commission of Pakistan as constituted under clause 5 of Article 175A, from time to time.”

Under clause 2, the most senior Judge among the judges nominated in the above clause 1 shall be the head of the Constitutional Benches.

According to clause 3, no high court bench “other than a Constitutional Bench shall exercise jurisdiction vested in the high court under sub-paragraph (i) of paragraph (a) and paragraph (c) of clause 1 of Article 199.

The sub-paragraph (i) of Article 199 empowers high courts to direct a “person performing, within the territorial jurisdiction of the court, functions in connection with the affairs of the Federation, a province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do”.

Paragraph (c) allows high courts to “make an order giving such directions to any person or authority, including any government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any” of the Constitutional fundamental rights.

According to clause 4, a Bench — nominated by a committee consisting of the Head of Constitutional Benches and the next two most senior judges from amongst the judges nominated under clause 1 — shall hear and dispose of such matters.

Under clause 5, all petitions under sub-paragraph (1) of paragraphs (a) and (c) of Article 199 or appeals therefrom, pending or filed in a high court prior to 26th Amendment Act’s commencement, forthwith stand transferred to the Constitutional Benches and shall only be heard and decided by Benches constituted under clause 3 stated above.

Appointment of SC judges
The Judicial Commission of Pakistan (JCP), besides appointing the judges for the above-mentioned courts, will also conduct a “performance evaluation of Judges of the high courts”.

Under changes to Article 175A’s Clause 2, which deals with the appointment of apex court judges, while the Chief Justice of Pakistan (CJP) retains their role as the chairperson, the JCP will now also feature a “presiding judge” as a member.

At the same time, “four most senior” SC judges included as members have now been made three.

A member meeting the following criteria has been removed: former CJP or SC judge to be nominated by the chief justice, “in consultation with the [four] member Judges, for a term of two years”.

Earlier, one of the members was to be a “senior advocate” of the apex court nominated by the Pakistan Bar Council, for a term of two years. The said lawyer’s experience has now been specified as an “advocate having not less than 15 years of practice in the SC”, still to be nominated by the PBC.

The law minister and the Attorney General of Pakistan also retain their role as members for appointing SC judges. However, lawmakers are also to be made part of the process under the amendments as follows:

(vii) two members from the Senate and two members from the National Assembly of whom two shall be from the treasury benches, one from each House, and two from the opposition benches, one from each House. The nomination from the treasury benches shall be made by the Leader of the House and from the opposition benches by the Leader of the Opposition:

During the time when the National Assembly stands dissolved, the remaining two members, for the purpose of this paragraph, shall be nominated from the Senate in the manner as aforesaid, for such period.

Another member would be a “woman or non-Muslim, other than a member of Majlis-e-Shoora (Parliament), who is qualified to be a member of the Senate as a technocrat, to be nominated by the speaker of the National Assembly for a term of two years”.

The draft further adds an explanation to the same clause, that if the Presiding Judge is the CJP or from among the three most senior SC judges, the “judge who is next in seniority below” those three shall become a member.

Under an amendment to Article 177, which pertains to the appointment of SC judges, the following criteria of their experience shall be omitted: including [having been a judge of] a high court which “existed in Pakistan at any time before the commencing day”.

Appointment of high court judges
The proposed amendments to Article 175A also introduce some notable changes to the procedure for appointing high court judges, incorporating the creation of constitutional benches.

Under tweaks to clause 5(ii) of the Article, for the appointment of high court judges, instead of the “most senior Judge of that high court” as one of the members, the “head of Constitutional Benches of that high court” shall be substituted.

Accordingly, the earlier condition that the most senior judge mentioned in paragraph (ii) shall not be a member of the JCP has been removed and the following explanation is to be added: “Explanation.— If the Head of Constitutional Benches of a high court is the chief justice of that high court, the judge who is next in seniority shall become a member of the commission.”

A proviso earlier mentioned: “Provided further that if for any reason the chief justice of high court is not available, he 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 four-member judges of the Commission mentioned in paragraph (ii) of clause 2.”

This will now read: “Provided further that if for any reason the chief justice of the high court is not available, he shall be substituted by a former chief justice or former judge of that court, to be nominated by the Commission.”

Under an amendment to Article 193, the minimum age for a high court judge has been reduced to 40 years from 45 years.

Clause 2 will now read: A person shall not be appointed as a judge of a high court unless he is a citizen of Pakistan, is not less than forty years of age, and

(a) he has, for a period of not less than 10 years, been an advocate of a high court; or

(b) he has, for a period of not less than 10 years, held a judicial office in Pakistan.

The following criteria are to be removed: “He is, and has for a period of not less than 10 years been, a member of a civil service prescribed by law for the purposes of this paragraph, and has, for a period of not less than three years, served as or exercised the functions of a district judge in Pakistan.”

Under clause 6, besides the Islamabad High Court (IHC) chief justice and its most senior judge, the process for appointing IHC judges will now also incorporate the following as members:

(iii) an advocate having not less than 15 years of practice in the high court to be nominated by the Islamabad Bar Council for a term of two years; and

(iv) a federal minister nominated by the prime minister.

Performance evaluations of high court judges
The following new clauses will be inserted into Article 175A:

Clause 18 — The Commission in clause 2 shall conduct an annual performance evaluation of high court judges

Clause 19 — If the performance of a judge of a high court is found by the Commission to be inefficient, it shall grant him such period for improvement, as it deems appropriate. If, upon completion of the period so granted, the performance of such judge is again found to be unsatisfactory, the Commission shall send its report to the Supreme Judicial Council

Clause 20 — The Commission may make separate rules for setting up effective standards for performance evaluation for the purpose of clauses 18 and 19

Clause 21 — For the purposes of this Article and subject to the rules made by the Commission, there shall be a secretariat of the Commission to be headed by a secretary and shall include such other officers and staff, as may be necessary

Clause 22 — One-third of the members of the Commission may requisition a meeting of the Commission by sending a written request to the Chairperson (the CJP as stated in clause 2) who “shall convene the meeting of the Commission not later than 15 days from the receipt of such requisition”. If the Chairperson fails to convene a meeting within the aforesaid period, the Secretary shall convene the meeting within seven days of the expiry of that 15-day period.

Clause 23 — For each anticipated or actual vacancy of an SC judge, the FSC chief justice, the chief justice of a high court, an FSC judge or a high court judge, any member of the Commission “may give nominations in the Commission for appointment against such vacancy”.

Right to clean, healthy environment
The bill proposes the insertion of a “new Article 9A” into the Constitution. The insertion is as follows:

“9A. Clean and healthy environment — Every person shall be entitled to a clean, healthy and sustainable environment.”

Fourth Schedule
Point 2 of Part 1 in the Fourth Schedule will now read: “Military, naval and air force works; local self-government in cantonment areas; local taxes, fees, cess, charges, tolls in such areas; the constitution and powers within such areas of cantonment authorities, the regulation of house accommodation in such areas, and the delimitation of such areas.”

The addition made is: “local taxes, fees, cess, charges, tolls in such areas”.

Other amendments
Under a change made to Article 208, which deals with the appointment of officers and servants of courts, will now also allow the IHC — besides the SC and the FSC — to make rules for the same purpose.

An amendment to clause 4 of Article 48 (president to act on advice, etc) proposes: “The question whether any, and if so what, advice was tendered to the president by the cabinet, or the prime minister, shall not be inquired into in, or by any court, tribunal or other authority.”

The earlier version had also included “a minister or minister of state” along with the president and prime minister.

Under changes to paragraph (b) of Article 81, the expenditure charged upon the Federal Consolidated Fund will now also include “administrative expenses, including the remuneration payable to officers and staff” of the Judicial Commission of Pakistan and the Supreme Judicial Council, besides, as stated before, the SC and other offices.

Another paragraph (da) that is to be included states: “any sums required to organise and conduct elections to the National Assembly, Senate, provincial assemblies and the local governments.”

An amendment made to Article 215 allows the chief election commissioner (CEC) and a member of the Election Commission of Pakistan (ECP) to “continue to hold office until his successor enters upon the office”, notwithstanding the expiration of his term.

Article 255, which pertains to the oath of office, will now specify: “Where, under the Constitution, an oath is required to be made before a specified person and, for any reason, it is impracticable for the oath to be made before that person, it may be made before such other person as may be nominated by the chief justice of a high court, in case of a province and by the CJP, in all other cases.”

Article 259, which deals with awards conferred by the president, “nursing” will be replaced with “science, technology, medicine, arts or public service”.