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”.