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Situationer: ‘Constitutional Package’ coming into view
• PML-N, PPP bigwigs meet to discuss proposed amendment that would ‘increase executive ingress in judicial appointments’
• Some legal experts believe current law is satisfactory; others back JCP reforms
The much-touted ‘Constitutional Package’ that seems to be occupying the bulk of the government’s attention at the moment may not be a person-specific legislation, but it would give the executive some ingress in the process of appointment, posting and transfer of the judges of the superior judiciary.
The government has been tight-lipped on the proposed amendments to the Constitution, despite its apparent desperation to secure the numbers required to ensure its passage from parliament.
But some key features of the so-called package are being discussed in the high judicial offices and among the representatives of the legal fraternity.
On Wednesday night, PM Shehbaz Sharif and PPP chief Bilawal Bhutto-Zardari also held consultations, ostensibly aimed at securing the passage of the ‘Constitutional Package’.
While there was no official mention of any discussion on the package in the official readout, with Law Minister Azam Tarar, Attorney General Mansoor Usman Awan, Deputy Prime Minister Ishaq Dar, Information Minister Attaullah Tarar and PPP leaders Syed Naveed Qamar and Karachi Mayor Murtaza Wahab in attendance, there could be little doubt as to what was on the agenda for the meeting.
Chief Justice Qazi Faez Isa’s ‘clarification’, issued a couple of days ago, also shed some light on what the thrust of the proposed amendment could be.
The statement explained that when the CJP was asked about the extension of his tenure, he replied that several months ago, Law Minister Azam Nazeer Tarar had come to his chambers and stated that the government was considering making the position of CJP a fixed tenure post for three years.
The CJP’s statement said he told the law minister that if the proposal was enacted as an individual-specific piece of legislation, it would not be something he would accept.
Senior puisne judge Justice Syed Mansoor Ali Shah and Attorney General for Pakistan (AGP) Mansoor Usman Awan were also present during this meeting, according to the statement from the CJP’s secretary.
Proposed amendments
According to sources, the package includes a set of amendments in Article 175-A and subsequent clauses, related to the Supreme Court and high courts and the composition of the Judicial Commission of Pakistan (JCP), which is likely to be changed.
The JCP was introduced through the 18th amendment for appointment of the judges of the high court, their confirmation and subsequent elevation to the Supreme Court. Under the article, the recommendations of the JCP were left at the mercy of the Parliamentary Committee on the Appointment of the Judges.
However, under a tacit understanding with the judiciary, which was examining the entire 18th constitutional amendment at the time, the government gave up parliament’s share in judicial appointments and the committee turned into a mere rubber stamp.
Sources say the Package also includes an amendment to Articles 177(1) and 180 of the Constitution. These are related to the appointment of judges of the Supreme Court. Article 180 specifically states that “The President shall appoint [the senior most of the other judges of the Supreme Court] to act as Chief Justice of Pakistan.”
Sources said that an amendment to Article 179 may also be made to enable the chief justice of Pakistan to retain his post for longer. The ruling coalition is said to be looking at fixing the tenure of the top judge at three years.
Another amendment is expected to Article 200 — related to the transfer of high court judges — which would enable the transfer of a judge of the superior judiciary from one high court to another, even without his consent.
However, the transfer can only be made with the nod of the chief justice of Pakistan and the chief justices of the high courts concerned, sources privy to the development said.
Views both for and against
A judge of the superior judiciary told Dawn that while the government has the power to make the law, if “it doesn’t suit us, we may go home”.
However, many legal experts view the existing law for the appointment and elevation of the judges as being satisfactory, saying that any change could complicate the situation.
Senior lawyer Ahsanuddin Sheikh said that the existing procedure for appointment of the chief justice and the superior judiciary does not need any ‘interference’.
He said that the ‘Constitutional Package’ would adversely affect the rights of those who are expected to assume certain offices.
Advocate Raja Inam Ameen Minhas, on the other hand, saw no harm if the composition of the JCP was changed.
He said the JCP and the overpowered Parliamentary Committee could not induct quality judges, adding that appointments in the judiciary following the adoption of the 18th amendment were not made solely on merit.
He claimed that a number of posts were filled by well-connected lawyers, adding that the district judiciary has also been ignored in appointments to the high court.
According to senior lawyer Mohammad Akram Sheikh, since the result of the Feb 8 election had been declared controversial by a leading political party, and the National Assembly that came into existence through these elections visibly lacks the majority to amend the Constitution, it should refrain from making any changes.
Required numbers
The desired legislation for the three-year tenure of the CJP needs 224 votes in the National Assembly for its passage and the ruling coalition is short of 12 votes.
Even if the JUI,-F led by Maulana Fazlur Rehman, agrees to support the proposed amendment, the government will still need four more votes in the National Assembly. However, it will have a two-thirds majority in the Senate with the JUI-F’s backing.
Meanwhile, several PTI lawmakers leaders have claimed that their members are being pressured to vote in favor of the so-called ‘Constitutional Package’.
In the Senate, 64 votes are required to obtain a two-thirds majority for a constitutional amendment, whereas the ruling coalition has 55 members in the Senate.
Published in Dawn, September 12th, 2024
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