• Stakeholders claim ‘consensus achieved, unified draft approved’ by Khursheed Shah-led parliamentary body
• Proposed changes include taking away SC’s suo motu powers, capping CJP’s term at three years, empowering special committee to name top judge from 3 senior-most
• Commission to select judges will also be empowered to conduct their annual performance evaluations

ISLAMABAD: A special parliamentary committee, chaired by Syed Khursheed Shah, on Friday approved the draft of a controversial set of constitutional amendments aimed at taking away the Supreme Court’s suo motu powers, setting the chief justice of Pakistan’s term at three years and empowering the prime minister to appoint the next CJP from among the three most senior judges of the apex court.

According to the proposed amendment, “The chief justice of Pakistan shall be appointed on the recommendation of the special parliamentary committee from amongst the three most senior judges of the Supreme Court. The committee, constituted for the aforesaid purpose, shall send the name of the nominee to the prime minister, who shall forward the same to the president for appointment.”

The special parliamentary panel will consist of 12 members — eight from the National Assembly and four from the Senate. Party representation on the committee will be proportional to their strength in parliament, with members nominated by their respective parliamentary leaders.

The committee will be required to send its nomination at least 14 days before the retirement of the sitting CJP. However, under the newly proposed rules, the first nomination following the enactment of the Constitution (Twenty-Sixth Amendment) Act, 2024, must be made three days before the retirement of the chief justice.

The amendments stipulate that no action or decision by the commission or the committee shall be invalidated or questioned solely due to a vacancy or the absence of any member from a meeting.

The proposed changes also empower the commission to create rules regulating its procedures, including criteria for the assessment and fitness of judges.

The amendments aim to revoke the chief justice’s authority to nominate a former chief justice or judge as a substitute in case of the unavailability of a sitting chief justice of a high court. This power will instead rest with the parliamentary commission.

An amendment to Article 175-A seeks to alter the composition of the commission responsible for appointing judges to the Supreme Court, high courts and the Federal Shariat Court. It also proposes a minimum of 15 years of Supreme Court practice for a senior lawyer to be nominated as a member of the commission.

Further changes to Article 48 of the Constitution aim to prevent any court, tribunal or authority from inquiring into advice tendered to the president by the prime minister or cabinet.

A proviso added to Article 179 states that the term of the CJP shall be three years or until resignation, attainment of the age of 65, or removal from office in accordance with the Constitution, whichever comes first. Upon completion of the three-year term, the chief justice will retire, notwithstanding their age of superannuation.

The parliamentary commission will also be authorised to conduct annual performance evaluations of high court judges. If a judge’s performance is found unsatisfactory, a timeframe for improvement will be set, and failure to meet expectations will result in a report being sent to the Supreme Judicial Council.

Another amendment to Article 184 restricts the Supreme Court from exercising suo motu jurisdiction beyond the scope of applications filed under the clause.

The amendments also propose the creation of constitutional benches within the Supreme Court. “There shall be as many constitutional benches of the Supreme Court, comprising such judges and for such term, as may be determined by the Judicial Commission of Pakistan, from time to time,” the amendment reads.

A proviso to this amendment adds that as far as practicable, the constitutional benches will comprise an equal number of judges from each province.

The amendment further clarifies that only constitutional benches will be able to exercise the original jurisdiction of the Supreme Court under Article 184, appellate jurisdiction under Article 185(3) (in cases involving the constitutionality of laws), and advisory jurisdiction under Article 186.

Published in Dawn, October 19th, 2024