What is the 26th Constitutional Amendment?

The government has been actively working since last month to implement what it claims are judicial reforms aimed at the “wider interest” of the country. This article outlines the changes being proposed to the Constitution.

In recent weeks, the ruling coalition has been vigorously engaging with various political parties in parliament to garner support for constitutional amendments that primarily target the judiciary.

The Constitution (Twenty-sixth Amendment) Act, 2024, commonly referred to as the Constitutional Package, is a legislative measure that limits the Supreme Court’s suo motu powers, establishes a three-year term for the Chief Justice of Pakistan (CJP), and grants the prime minister the authority to appoint the next CJP from among the three most senior judges of the Supreme Court.

The Amendment was approved by the Senate with a two-thirds majority on Sunday and then received the same majority from the National Assembly early on Monday morning.

An earlier attempt in September by the ruling Pakistan Muslim League-Nawaz (PML-N) to push through the amendments failed to gain the support of the Jamiat Ulema-i-Islam-Fazl (JUI-F), resulting in the legislation not being tabled despite the houses being in session.

A special parliamentary committee, established last month and representing all parties, including the Pakistan Tehreek-e-Insaf (PTI), has discussed various proposals over the past few weeks.

Maulana Fazlur Rehman, leader of the JUI-F, played a significant mediating role as the opposition raised concerns about the amendments and alleged intimidation of its lawmakers regarding their support for the draft.

Read More: Federal Cabinet Grants Approval for the 26th Constitutional Amendment

A key point of contention was the proposed establishment of a Federal Constitutional Court, which the PTI opposed, while Fazl advocated for a constitutional bench instead, a demand that is now included in the act.

Although the JUI-F had previously reached an agreement on a draft with the Pakistan People’s Party (PPP) earlier this month, the PTI stated it had “no objections” to the final draft but officially boycotted the voting process.

The initial draft had proposed 56 amendments; however, after extensive discussions among the parties, this number was reduced to 27 in the final version passed by the National Assembly.

This piece outlines the amendments included in the act, a copy of which is available on Dawn.com, stating that these changes are to take effect immediately.

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Appointment of CJP; Expansion of Parliamentary Committee

The most extensive amendments are made to Article 175A, which governs the appointment process for judges in the Supreme Court, high courts, and the Federal Shariat Court (FSC).

Under the amendments to clause 3 of Article 175A, the appointment of the Chief Justice of Pakistan (CJP) will no longer be made by the president from the “most senior judge of the Supreme Court.” Instead, the CJP will be appointed based on recommendations from a Special Parliamentary Committee, which will select from the three most senior Supreme Court judges. This committee will then send the nominated name to the prime minister, who will forward it to the president for the official appointment.

Previously, clause 8 stated that the Judicial Commission of Pakistan (JCP) could forward its nominations for judicial vacancies in the Supreme Court, high courts, or FSC judges to an eight-member parliamentary committee. This committee would then relay the nominations to the prime minister, who would send them to the president.

The amendment allows the JCP to send its nominations directly to the prime minister, who will then forward them to the president for appointment. Consequently, clauses 9, 10, 11, 12, and 13 related to the previous eight-member committee will be removed.

A new clause, 3A, establishes that the Special Parliamentary Committee will consist of twelve members, including:

(i) eight members from the National Assembly; and
(ii) four members from the Senate.

The act specifies that if the National Assembly is dissolved, the committee will be composed solely of the Senate members mentioned in paragraph (ii), with the provisions of this article applying accordingly.

Additionally, clause 3B stipulates that “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 will be responsible for notifying the committee members.

Under clause 3C, the Committee is required to send its nomination “by a majority of not less than two-thirds of its total membership, within 14 days prior to the retirement” of the Chief Justice of Pakistan (CJP). The act further states that the first nomination under clause (3), following the enactment of the 26th Amendment, must be submitted “within three days prior to the retirement” of the current top judge.

A new clause, 3D, clarifies that “no action or decision taken by the Commission or the Committee shall be deemed invalid or challenged solely on the basis of a vacancy or the absence of any member from a meeting.”

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Clause 3E mandates that the committee’s meetings be held in-camera, and a record of the proceedings must be maintained. According to clause 3F, the provisions of Article 68—which prohibit lawmakers from discussing the conduct of any Supreme Court or high court judge in the performance of their duties—“shall not apply to the proceedings of the committee.”

Under clause 3G, the committee is authorized to “make rules for regulating its procedure.” As a result, clauses 15, 16, and 17 of Article 175A, which related to the previous eight-member parliamentary committee and were similar to clauses 3E, 3F, and 3G, will be removed.

The act amends clause (4) of Article 175A, which previously allowed the Judicial Commission of Pakistan (JCP) to create rules governing its procedure. It now specifies that the JCP may “make rules regulating its procedure, including the process and criteria for assessing, evaluating, and determining the fitness for appointment of judges.”

The phrase “or a committee” is removed from clause 14, which originally stated: “No action or decision taken by the [JCP] or a committee shall be invalid or questioned solely on the grounds of the existence of a vacancy or the absence of any member from any meeting.”

Additionally, the CJP’s term has been capped at a maximum of three years. This amendment is reflected in Article 179, which now states: “A Judge of the Supreme Court shall hold office until he reaches the age of 65 years, unless he resigns or is removed from office according to the Constitution.”

This clause specifies that the CJP’s term “shall be three years or until he resigns, reaches the age of 65 years, or is removed from office as per the Constitution, whichever occurs first.” It also stipulates that the top judge “shall retire upon completion of his three-year term, irrespective of his age of superannuation.”

Another significant amendment has been made to Article 184, which governs the Supreme Court’s original jurisdiction. The amendment restricts the Supreme Court’s suo motu powers by adding the provision: “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.”

In a modification to Article 186A, the Supreme Court is now authorized to transfer cases from high courts to itself. The revised text states: “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.”

An amendment to clause 2 of Article 185, which addresses the Supreme Court’s appellate jurisdiction, stipulates that an appeal shall lie to the Supreme Court 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)]”, replacing the previous threshold of “not less than fifty thousand.”

Additionally, clause 1 of Article 187 (Issue and execution of processes of the Supreme Court) will now include: “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.”

Regarding the jurisdiction of high courts, a new clause 1A is to be added under Article 199, which similarly removes the suo motu powers of high courts. Clause 1A states: “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 the Supreme Court

A new Article 191A (Constitutional Benches of the Supreme Court) will be introduced for establishing these judicial benches.

• Clause 1 states: “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.”
• Clause 2 designates the most senior judge among those nominated under clause 1 as the Presiding Judge of the Constitutional Benches.
• Clause 3 restricts other Supreme Court benches, apart from Constitutional Benches, to exercise the following jurisdictions:
• (a) Original jurisdiction under Article 184;
• (b) Appellate jurisdiction under clause 3 of Article 185, particularly when a judgment or order of a high court under Article 199 involves constitutional questions or substantial legal interpretations; and
• (c) Advisory jurisdiction under Article 186.
• Clause 4 requires a bench comprising at least five judges, nominated by a committee that includes the Presiding Judge and the next two most senior judges from among those nominated under clause 1, to hear and dispose of such matters.
• According to clause 5, all petitions, appeals, or review applications pending or filed in the Supreme Court before the commencement of the 26th Amendment, which fall under clause 2, will now be transferred to the Constitutional Benches and will only be heard and decided by benches constituted under clause 3.
• Clause 6 empowers the judges nominated in clause 1 to establish 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 will be added to facilitate the formation of constitutional benches within high courts.

• Clause 1 specifies: “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.”
• Clause 2 states that the most senior judge among those nominated in clause 1 will serve as the head of the Constitutional Benches.

These amendments are designed to refine the judiciary’s structure and operations, particularly addressing concerns about the scope of authority held by the Supreme Court and high courts.

High Court Jurisdiction

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.

• Sub-paragraph (i) of Article 199 allows high courts to direct individuals performing functions within the court’s jurisdiction (related to the Federation, a province, or a local authority) to refrain from unlawful actions or to fulfill legal obligations.
• Paragraph (c) empowers high courts to issue orders directing any person or authority, including government bodies, to enforce constitutional fundamental rights.

Under clause 4, a bench nominated by a committee consisting of the Head of Constitutional Benches and the next two most senior judges from among those nominated under clause 1 will hear and dispose of such matters.

Clause 5 mandates that all petitions or appeals under sub-paragraphs (1) of paragraphs (a) and (c) of Article 199 pending or filed in a high court before the commencement of the 26th Amendment shall be transferred to the Constitutional Benches and will only be heard and decided by benches established under clause 3.

Appointment of Supreme Court Judges

The Judicial Commission of Pakistan (JCP) will not only appoint judges for the aforementioned courts but will also conduct performance evaluations of high court judges.

Changes to Article 175A, which governs the appointment of Supreme Court judges, include the following:

• The Chief Justice of Pakistan (CJP) remains the chairperson of the JCP, but now a “presiding judge” will also serve as a member.
• The number of “four most senior” Supreme Court judges on the commission has been reduced to three.
• The provision requiring a former CJP or Supreme Court judge, nominated by the chief justice in consultation with four member judges for a two-year term, has been removed.
• The earlier requirement for a “senior advocate” of the Supreme Court, nominated by the Pakistan Bar Council for a two-year term, has been specified as an advocate with no less than 15 years of practice in the Supreme Court, still to be nominated by the Pakistan Bar Council.

The law minister and the attorney general of Pakistan will retain their roles as members of the JCP. Additionally, lawmakers will be included in the appointment process through the following amendments:

• Two members from the Senate and two members from the National Assembly, with two from the treasury benches (one from each House) and two from the opposition benches (one from each House). The nominations from the treasury benches will be made by the Leader of the House and from the opposition by the Leader of the Opposition.
• If the National Assembly is dissolved, the remaining members will be nominated from the Senate as stated above.

Another new requirement is the nomination of a “woman or non-Muslim” (not a member of Majlis-e-Shoora) who qualifies to be a Senate member as a technocrat, nominated by the Speaker of the National Assembly for a two-year term.

An explanation added to the same clause specifies that if the presiding judge is the CJP or one of the three most senior Supreme Court judges, the next senior judge will become a member.

Furthermore, the amendment to Article 177, concerning the appointment of Supreme Court judges, omits the prior requirement that included experience as a judge of any high court existing in Pakistan before the commencement of the amendment.

These changes collectively aim to enhance the accountability, diversity, and effectiveness of the judicial appointment process while curbing the expansive jurisdiction previously held by the Supreme Court and high courts.

Judicial Amendments Overview

The recent amendments aim to enhance the judiciary’s structure and function, specifically addressing issues surrounding the powers exercised by the Supreme Court and high courts.

High Court Jurisdiction

Under clause 3, only Constitutional Benches are authorized to exercise jurisdiction as stated in sub-paragraph (i) of paragraph (a) and paragraph (c) of clause 1 of Article 199. This provision empowers high courts to direct individuals involved in governmental functions within the court’s jurisdiction to comply with legal requirements or refrain from unlawful actions. Additionally, paragraph (c) allows high courts to issue orders for enforcing fundamental constitutional rights.

Clause 4 stipulates that a Bench, selected by a committee consisting of the Head of Constitutional Benches and the next two most senior judges, will hear and resolve such matters. Clause 5 mandates that all petitions or appeals related to these jurisdictions, pending or newly filed before the commencement of the 26th Amendment Act, will be transferred to the Constitutional Benches for resolution.

Appointment of Supreme Court Judges

The Judicial Commission of Pakistan (JCP) is tasked with appointing judges to the aforementioned courts and will now also conduct performance evaluations of high court judges. Amendments to Article 175A’s Clause 2 state that while the Chief Justice of Pakistan (CJP) remains the chairperson, the JCP will also include a “presiding judge.” The number of senior Supreme Court judges included as members has been reduced from four to three.

The earlier stipulation requiring a former CJP or SC judge to be nominated by the chief justice has been removed. Furthermore, a senior advocate with at least 15 years of practice in the Supreme Court will still be nominated by the Pakistan Bar Council, while the law minister and the attorney general will continue to serve as members. New provisions involve the inclusion of lawmakers in the process, with two members each from the Senate and the National Assembly, representing both the government and opposition.

Additionally, there will be a provision for a qualified woman or non-Muslim technocrat, nominated by the speaker of the National Assembly for a term of two years. If the presiding judge is the CJP or one of the three most senior judges, the next most senior judge will take their place.

High Court Judge Appointments

Changes to Article 175A also affect the appointment procedure for high court judges, particularly through the establishment of constitutional benches. The amendments will replace the requirement for the “most senior Judge of that high court” with the “head of Constitutional Benches of that high court.” If the head is unavailable, a former chief justice or judge will be nominated by the Commission.

Moreover, the minimum age for a high court judge has been lowered from 45 to 40 years, with new criteria for eligibility that includes at least 10 years as an advocate or in a judicial office in Pakistan.

For the Islamabad High Court (IHC), the appointment process will now include a nominated advocate with 15 years of high court practice and a federal minister appointed by the prime minister.

Performance Evaluation of High Court Judges

New clauses have been added to Article 175A to establish a system for evaluating the performance of high court judges. The Commission will conduct annual evaluations and grant improvement periods for judges deemed inefficient. If performance remains unsatisfactory, reports will be sent to the Supreme Judicial Council.

The Commission can create rules to define effective performance evaluation standards, and a secretariat will be established to support its operations. Additionally, meetings can be requisitioned by one-third of the Commission members, with timelines set for convening.

Federal Shariat Court and Council of Islamic Ideology Amendments

An amendment to Article 203C now allows a judge qualified for the Supreme Court to serve as the chief justice of the Federal Shariat Court (FSC). Further changes in Article 203D state that appeals against decisions made under the 26th Amendment must be resolved within 12 months.

In Article 229, the threshold for parliament to refer questions to the Council of Islamic Ideology (CII) has been lowered from two-fifths to one-fourth of the total membership. Additionally, a new proviso in Article 230 states that the CII’s final report must be considered within a year.

Additional Provisions

Paragraph (f) of Article 38 will now specify a complete elimination of riba by January 1, 2028. A new Article 9A has been introduced, granting everyone the right to a clean, healthy, and sustainable environment.

The Fourth Schedule has also been updated to clarify provisions related to local governance in cantonment areas, particularly regarding taxes and charges.

Here’s a concise summary of the key amendments regarding the appointment of high court judges and related judicial reforms:

Key Amendments to Judicial Appointments and Procedures

1. High Court Judge Appointments:

• Constitutional Bench Creation: The procedure for appointing high court judges has been revised to include the “head of Constitutional Benches” of that court instead of the “most senior Judge” as a member of the Judicial Commission of Pakistan (JCP).
• Removal of Seniority Requirement: The condition for the most senior judge to be part of the JCP has been removed. If the head of Constitutional Benches is the chief justice, the next senior judge will be included in the commission.
• Substitution of Chief Justice: If the chief justice is unavailable, a former chief justice or judge will be nominated by the commission, rather than the Chief Justice of Pakistan consulting with four judges.

1. Eligibility Criteria:

• The minimum age for a high court judge has been reduced from 45 to 40 years.
• The requirement for judges to have been members of civil services or district judges has been eliminated.

1. Islamabad High Court Appointments:

• The process now includes an advocate with at least 15 years of practice, nominated by the Islamabad Bar Council, and a federal minister nominated by the Prime Minister.

1. Performance Evaluations:

• The commission will conduct annual performance evaluations of high court judges, offering time for improvement if inefficiencies are found.
• Reports on judges with unsatisfactory performance will be sent to the Supreme Judicial Council if no improvement occurs.

1. Federal Shariat Court and Council of Islamic Ideology:

• Criteria for the appointment of the Federal Shariat Court chief justice now includes a qualified FSC judge.
• Changes to references sent to the Council of Islamic Ideology (CII) now allow for questions to be referred if one-fourth of the assembly members demand it.

1. Riba Elimination and Environmental Rights:

• The timeline to eliminate riba (interest) has been set to before January 1, 2028.
• A new article guarantees the right to a clean and healthy environment.

1. Additional Amendments:

• The Islamabad High Court can now make rules for appointing court officers and staff.
• Article 48 states that inquiries into the advice given to the president by the cabinet will not be subject to court examination.
• Changes to Articles related to the Federal Consolidated Fund now include judicial commission expenses and election-related costs.

Conclusion

The amendments aim to enhance the transparency and effectiveness of the judicial appointment process, establish performance evaluation mechanisms for judges, and address significant societal issues like climate change. The legal community has advocated for these changes to ensure accountability and improve the judicial system in Pakistan..