THE draft of the 26th Constitution Amendment Bill 2024 passed by parliament contains 27 clauses, including a few fresh amendments that were introduced by government and JUI-F members on the floor of the house.

Although the bill contains a number of provisions not directly related to the judiciary, the thrust of the amendment is on judicial reforms, with parliament being given a greater role in the way judges are appointed to the Supreme Court, and the selection of the chief justice of the Supreme Court of Pakistan.

The amendment to Article 175A of the Constitution reconstitutes the Judicial Commission of Pakistan (JCP) with the inclusion of four members of parliament — two each from the treasury and opposition, one from the National Assembly and the other from the Senate. Earlier, the committee consisted of five SC judges (including the CJP as its chairman), the Attorney General for Pakistan, the federal law minister, a former chief justice and a senior advocate nominated by the Pakistan Bar Council.

It also changes the method of the appointment of the chief justice of Pakis­tan (CJP); whereas earlier the senior most judge of the SC was automatically appointed as the CJP, now a Special Par­liamentary Committee will pick one name from the three senior-most judges of the SC. The committee will suggest one name to the prime minister, and subsequently the president, for appointment.

This committee will have eight MNAs and four senators, who will be selected in proportion to the number of their parties’ seats in the two houses.

This committee will be bound to send the next CJP’s name to the PM at least fourteen days before the incumbent’s retirement. However, for the purposes of the present changing of guard at the apex court — due on Oct 25 with the expected retirement of CJP Qazi Faez Isa — the amendment provides that the committee can send its nomination up to three days prior to the incumbent’s retirement.

The CJP’s term, under changes to Article 179 of the Constitution, has been set at three years, unless he resigns sooner, attains the age of 65 or is removed from office. Even if the CJP hasn’t reached 65 years, they would still stand retired at the end of their three-year term.

The amendment also empowers the JCP to evolve criteria for assessment, evaluation and fitness for appointment of judges. If a high court judge’s performance is deemed “inefficient,” an improvement period will be granted. If the judge fails to improve, a report will be submitted by the JCP to the Supreme Judicial Council (SJC), which is the forum with the authority to remove judges over misconduct.

Additionally, the minimum age requirement for the appointment of high court judges has been reduced from 45 years to 40 years.

Constitutional benches

The amendment also creates a new Article 191A, titled ‘Constitutional Benches of the Supreme Court’.

These benches will “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”, while the most senior judge from among them will be considered the ‘Presiding Judge’.

It is not immediately clear from the language of the amendment whether the judges appointed by the JCP to these benches would be part of the SC’s existing strength, or separate from it.

Another provision states that constitutional benches would consist of at least five judges, who will be nominated by a three-judge committee, similar to the one functioning under the SC Practice and Procedure Act, comprising the presiding judge and the next two most senior judges.

Under the amendment, the suo motu jurisdiction previously granted to the SC under Article 184 of the Constitution, will now be exercised by Constitutional Benches of the apex court.

These benches would also deal with cases under Article 185 “where a judgment or order of a High Court passed under Article 199 involves constitutionality of any law or a substantial question of law as to the interpretation of the Constitution”.

In addition, the SC’s advisory jurisdiction, under which the president can seek the court’s opinion by referring matters to it, will also be dealt with by the constitutional benches.

Under the draft, all petitions, appeals, and other matters filed under the aforementioned articles and pending before the Supreme Court during the amendment process, will stand transferred to the constitutional bench for adjudication following the passage of the amendment.

The amendment also seeks to insert Article 202A, envisioning similar benches in the high courts, for which judges would be selected along similar lines.

While the draft does not mandate that provinces form similar benches in their respective high courts, an amendment introduced by Law Minister Azam Nazeer Tarar on the floor of the Senate said that the four provincial assemblies — and the National Assembly in respect of the Islamabad High Court — can adopt resolutions setting up constitutional benches in their respective high courts.

Other changes

The constitutional amendment did not only focus on “judicial reforms”, but also makes “clean environment” a fundamental right for every citizen for that new Article 9A was inserted into the Constitution, entitling every citizen to a clean, healthy, and sustainable environment.

The amendments suggested to Article 215, which previously specified a five-year term for the chief election commissioner (CEC) and members of the Elec­tion Commission of Pakistan (ECP), the revised provision would allow the CEC and members to continue performing their duties until their successors assume office.

Meanwhile, under an amendment to the Fourth Schedule, “local taxes, fees, cess, charges, tolls in such areas” collected by cantonment boards have been incorporated in the Federal Legislative list.

The bill has also removed the “protection” previously granted to ministers or ministers of state under Article 48, which shielded them from being questioned in court or by any authority.

The scope of the Federal Consolidated Fund, as given in Article 81, has been expanded to include provisions for the SC, the JCP and the SJC. Additionally, a new paragraph has been added regarding the allocation of funds required for organising and conducting elections to the National Assembly, Senate, provincial assemblies, and local bodies.

Published in Dawn, October 21st, 2024