Proposal to pick CJP from among three most senior SC judges

ISLAMABAD: The chief justice of the Supreme Court will be appointed from among the three most senior judges by an eight-member parliamentary committee, according to the government draft of the proposed constitutional amendment.

The government and Jamiat Ulema-e-Islam (JUIF) shared their respective drafts for the constitutional amendment in the Special Committee on Saturday through which the government has proposed the structure of Federal Constitutional Court (FCC) while the JUIF proposed the Constitutional bench of the Supreme Court for constitutional matters.

According to the government draft, the FCC will consist of seven members, including the chief justice.

The first chief justice of the FCC will be appointed by the president on the advice of prime minister. The first chief justice and three senior judges of the constitutional court will be appointed on the recommendation of the committee that would include four members of parliament, federal law minister and a representative of Pakistan Bar Council.

It has been proposed that a commission will be formed for the appointment of FCC judges, the head of which will be the FCC chief justice, and its five most senior judges will be members of the commission. Apart from this, there will be provincial constitutional courts.

According to the proposed amendment, the prime minister will send the matter to the president after consultation on the name of a qualified judge. The remaining members of the FCC will be appointed by the president in consultation with its chief justice, the names of chief justice and judges will be given to the prime minister through the parliamentary committee.

The age of a judge will be 40 years, three years of court experience and 10 years of legal experience will be mandatory. A Federal Constitutional Council will be established for the dismissal of a judge and the president will give the final approval for dismissal of any judge.

The proposed amendment states that the decision of FCC cannot be challenged in any court, while the decisions of four provincial constitutional courts can be appealed in the FCC.

Meanwhile, according to the JUIF draft, special benches of the Supreme Court will be formed to hear constitutional cases. The constitutional bench will consist of Chief Justice of Pakistan and four senior judges. The JUIF proposed to implement the 18th Amendment to the extent of appointing judges while the Constitutional Bench of the Supreme Court will be authorised to hear appeals against the decisions of Constitutional Bench of high court, while cases related to interpretation of the Constitution will be heard by the Constitution Bench only.

Meanwhile, the Pakistan Peoples Party (PPP) and JUIF decided to continue consultations on the constitutional court and constitutional bench. Both the parties met at the Zardari House. From the PPP, Syed Naveed Qamar and Murtaza Wahab and from JUIF Senator Kamran Murtaza participated. The PPP’s draft talked about the formation of FCC while JUIF wanted a Constitutional bench of the Supreme Court instead of a constitutional court.

Talking to newsmen after the meeting, Mayor Karachi Murtaza Wahab said: “We put our stances before each other and things are moving in the right direction.” He said consultations continue and hoped that people will hear good news soon. Murtaza said: “We had a detailed discussion on both the drafts. The issue between us was constitutional court and bench and hopefully we both will show some flexibility to move ahead,” he said.

Meanwhile, the Special Committee of Parliament formed a sub-committee under Minister for Law and Justice Azam Nazeer Tarar to contemplate all drafts pertaining to the amendment and to prepare recommendations related to the amendments.

Two members of the Pakistan Tehreek-e-Insaf (PTI) have also been included in the sub-committee. The committee will formulate recommendations and give these to the special committee. The in-camera meeting of parliament’s special committee for consensus on the proposed constitutional amendment was held under Chairman Syed Khursheed Shah here at the Parliament House and was attended by members of the committee. JUIF chief Maulana Fazlur Rehman and PTI senior leader Asad Qaiser attended the meeting through video link while Pakistan Peoples Party Chairman Bilawal Bhutto-Zardari was not among the attendees.

The PPP had submitted its draft proposal for the constitutional amendment in the meeting of Special Committee on Friday while the government and JUIF submitted their proposed drafts in Saturday’s meeting, but the PTI had not submitted its draft to the committee yet.

A sub-committee was formed to consider the drafts related to constitutional amendments in the in-camera meeting of Special Parliamentary Committee, which is scheduled to hold its meeting today (Sunday). The sub-committee will report to the special committee and anyone can attend the sub-committee meeting. The meeting of the special committee has been convened on Monday evening.

According to sources, during the special committee meeting, the members expressed concern over PTI’s announcement of protest on October 15 when the Shanghai Cooperation Organisation (SCO) heads of government summit will be in progress. Sources said PTI leader Omar Ayub Khan responded that it was their constitutional right to protest. Omar stated that he wanted to emphasize that the PTI did not believe in negative politics. “We will openly present our position on the constitutional amendment and hope that our voice will not be suppressed as usual,” he added.

According to sources, the PTI adopted non-cooperative attitude in the meeting and refused to recognise the process of constitutional amendment while accusing the government of being the government of Form 47.

Meanwhile, talking to newsmen after the meeting, PPP Vice President Senator Sherry Rehman said that they were trying to create a consensus. “Creating a consensus is specialty of PPP.” She said Quaid-i-Azam Muhammad Ali Jinnah also considered the constitutional court a priority.

She said that there are different procedures for the appointment of judges in different countries. It is not the case that judges are appointed on the basis of seniority. She said in politics we talk on the basis of mutual interests, nothing is perfect and the constitutional amendment would not be perfect either. But efforts were being made to bring transparency in the constitutional amendment.

JUIF leader Senator Kamran Murtaza said that the only difference between the draft of PPP and JUIF was the constitutional court and the bench. He submitted 24 points in response to the government’s 56-point draft, saying there was no need for a big set-up for less than 200 constitutional cases.

PMLN leader Senator Irfan Siddiqui said that the special committee was close to reaching a consensus on constitutional amendments, with key political parties aligning on major points. “The primary goal of the special parliamentary committee is to reach a consensus on a unified draft of constitutional amendments,” he said.

Senator Irfan Siddiqui said the draft, once finalized, will be presented to the government, would be passed by the cabinet and then turned into a bill requiring a two-thirds majority in the assembly. He expressed optimism about the ongoing discussions with Jamiat Ulema-e-Islam (JUIF), noting that while there had been some setbacks earlier, recent meetings have brought a positive outlook.

He said the government’s draft, which includes suggestions from the legal community and bar associations, has been finalised. “The PPP has also submitted its draft, and today Maulana Fazlur Rehman presented his version,” he added. He said the MQM has submitted a separate draft focusing on local government reforms, although they agree with the broader constitutional amendments. “PTI is the only party that has not submitted anything in writing,” he said,

Senator Irfan Siddiqui pointed out that while they raise objections, they have not provided any specific document for consideration. He urged the PTI to bring forward any solid recommendations if they have any.

Responding to a question, the senator said none of the proposed amendments are person-specific, and no individual’s name has been considered so far. He criticised the PTI for objecting without offering constructive alternatives.

MQM-Pakistan leader Dr Farooq Sattar said they had not seen the constitutional amendment draft yet. He said PMLN, PPP and PTI all oppose or support the reform agenda as per necessity.

Meanwhile, in a statement on social media platform ‘X’, PPP Chairman Bilawal Bhutto-Zardari said Quaid-i-Azam Muhammad Ali Jinnah first detailed the concept of a federal constitutional court during the subcommittee on the federal structure at the Round Table Conference in London on October 27, 1931.

Bilawal noted that the proposal aligns closely with the current proposal put forth by the PPP. “Jinnah’s vision included the establishment of three apex courts: the Federal Court, responsible for constitutional matters and the enforcement of citizens’ fundamental rights; the Supreme Court, which would hold appellate jurisdiction over the high courts and a Criminal Court of Appeal,” he stated.

He articulated that at the sub-committee, Quaid-i-Azam stated that “any question that relates to the federal constitution or arises out of the federal constitution should vest in the Federal Court”, highlighting his concerns about the potential overreach of a single court regarding federal laws.

Bilawal said the founding father maintained that individuals whose rights were “invaded or attacked” should have direct access to the Federal Court for constitutional matters, ensuring that the court would not become overburdened. This approach would facilitate the expeditious disposal of cases, addressing the pressing need for efficiency within the judicial system.

Moreover, Bilawal stated that Quaid-i-Azam advocated for the separation of the Federal Court, suggesting that the selection of specialised personnel would enhance the court’s capacity to address constitutional matters effectively. “We know, sir, that this is an age of specialists,” emphasizing the necessity for a judiciary equipped to handle complex legal issues.

Furthermore, he stated that Jinnah noted the complexities faced by courts burdened with diverse legal issues. He further noted that Jinnah’s proposals predate and are remarkably similar to the basic law of Germany established in 1949, which also created a Federal Constitutional Court to alleviate the burden on the existing courts.

The PPP chairman said this message serves as a timely reminder of the foundational principles laid down by Jinnah, advocating for a judicial structure that not only safeguards constitutional rights but also ensures that justice is delivered efficiently and effectively.

Meanwhile, PTI Chairman Barrister Gohar Ali Khan said that the copy of JUIF and government’s drafts have been received, which will be considered. Talking to the media along with other PTI leaders here, Gohar said they have asked for summoning the special committee’s next meeting after October. He insisted that they were opposed to the idea of a constitutional court in the country. The PTI leader explained that the Supreme Court of Pakistan has more than 65,000 pending cases, including 148 constitutional cases, whereas the apex court also has as many as 28 suo motu cases pending.

Addressing the government and its allies, he remarked, “You are making a court for only 176 cases, while the entire burden is still on the Supreme Court and will remain with the apex court.” He emphasized that there was a need to thrash out a method to end the burden of cases on the apex court.

Barrister Ali Zafar, who is the PTI’s parliamentary leader in the Senate, said that there was a proposal to create a constitutional court in the government draft. According to the draft, he pointed out, the chief justice of the proposed constitutional court will be appointed by the prime minister himself and then the chief justice will appoint four judges of this court. “This way, they are going to create a rubber stamp court, whose all five judges will be appointed by the prime minister in a way,” he contended.

Leader of the Opposition in the National Assembly Omar Ayub Khan said that the party MNAs are being offered up to Rs500 million to support the proposed constitutional amendment bill.

Referring to the constitutional court, he maintained the government wanted to create a parallel judicial system in the country. He alleged that the government wanted to bring such a judicial system in which the court decides on a piece of paper.

Meanwhile, talking to a private news channel, Federal Law Minister Azam Nazeer Tarar urged the opposition to put aside its personal interests and go with constructive suggestions for constitutional amendments rather than merely criticising the proposed changes.

Tarar emphasized the importance of broad agreement on the amendments, reassuring that no decisions will be made without consensus. The government is keen on addressing concerns and making progress on the constitutional package, he added.

Tarar reiterated the government’s commitment to resolving all outstanding issues through collaborative efforts and a meaningful dialogue. He emphasized that the government is eager to engage in constructive table talks with the opposition, aiming to find mutually beneficial solutions. Tarar stressed that consensus-building is crucial for the country’s progress and stability.