Another push for elusive consensus on constitutional amendment

ISLAMABAD: After a month of political twists and turns,, the Special Parliamentary Committee — comprising government and opposition members — has “unanimously approved” the draft for the proposed 26th Constitutional Amendment.

The development comes after the special committee formed to debate the contentious Constitutional Package met under the chairmanship of PPP lawmaker Syed Khursheed Shah on Friday.

The draft envisages formation constitutional bench, parliamentary role in appointment of chief justice of the Supreme Court from list of three judges, restructuring of Judicial Council as well as Supreme Judicial Council, and fixing the three years tenure of chief justice.

Following the in-camera meeting of the special committee, Khursheed told the media that the committee had unanimously approved the proposed draft. “Now the cabinet will gave approval for the draft after which it could be brought in the either of House for approval,” he said.

When asked whether the clause to change the name of Khyber Pakhtunkhwa to Pakhtunkhwa has also been included, he said that all other amendments would be brought in the next phase.

He said that the Pakistan Tehreek-e-Insaf (PTI) was also present in the meeting, and raised the point of giving the right of overseas Pakistanis to contest the elections, adding that the committee had suggested to the federal cabinet that the right of overseas Pakistanis to contest the election should be included in the amendment.

He said that everyone agreed on the draft that was put forward point to point, though no one has signed it yet. On the contrary, the PTI dispelled that the impression that the unanimously approved the draft. “I want to talk on record, I opposed the draft openly in the meeting,” said PTI leader Amir Dogar in a video message.

“I had told the committee that the PTI would give its stance over the draft following a meeting with JUIF, and that his party would support the amendment only with the approval of party chief Imran Khan,” he maintained.

Leaders from all major political parties, sans Awami National Party’s Aimal Wali Khan, were present in the meeting.

MQMP leader Farooq Sattar claimed that the Pakistan Tehreek-e-Insaf (PTI) principally agreed on the draft but the party had reservations on some points.

PTI Chairman Barrister Gohar Ali Khan, however, said that consultation on the fourth draft shared by the government on Friday is underway, adding that they would make final decision on the Constitutional Package after meeting with his party founder Imran Khan, who is currently incarcerated in Adiala Jail in multiple cases.

Addressing a press conference following a meeting with Jamiat Ulema-e-Islam Fazl (JUIF) chief Maulana Fazlur Rehman, the PTI chairman distanced his party from the decisions made in the parliamentary committee meeting, saying: “Our meeting was underway when we came to know that the draft was approved [by the parliamentary committee].”

He said that they would announce their decision on the draft of the much-touted constitutional amendments after discussing it with the PTI founder chairman.

Barrister Gohar was of the view that they would move forward “in light with the directions of Imran Khan.

“We will try to meet PTI founder tomorrow and will give out final version [after the meeting].”

PTI leadership was not allowed to meet incarcerated Khan for the past over two weeks, he added.

Responding to a question, the PTI chief said that a new draft was shared with them during Friday’s parliamentary committee meeting. The sitting approved 26 points of the fourth draft, he added.

“During meeting with Fazlur Rehman, we have reached a consensus [on a draft].”

The committee approved the same draft on which we had agreed with the JUIF chief, Barrister Gohar added.

To another query, he said that PTI leader Amir Dogar was among the attendees of the parliamentary committee meeting.

To a question, he said that they had no formal meeting with Bilawal at the Maulana Fazl’s residence.

He said that Bilawal was present there to meet with the Maulana “but sat in another room where we were not present. He only met us before his departure but we had no discussion with him over the draft”.

The amendments’ draft proposed Constitutional Benches of the Supreme Court through amendment to Article 191 of the Constitution, with insertion of new Article 19A that says “here 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:

1) Provided that the Constitutional Benches may, as far as practicable, comprise equal number of judges from each province.

2) No Bench of the Supreme Court other than a Constitutional Bench shall exercise following jurisdictions vested in the Supreme Court, namely: original jurisdiction of the Supreme Court under Article 184; appellate jurisdiction of the Supreme Court under clause (3) of Article 185, where a judgement 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, and advisory jurisdiction of the Supreme Court under Article 186.

For the purposes of clause (2), a Constitutional Bench comprising not less than five judges, to be nominated by a committee of three most senior judges from amongst the judges determined under clause (1), shall hear and dispose of such matters.

All petitions, appeals or review applications against judgements rendered or orders passed, to which clause (2) applies, pending or filed before the Supreme Court prior to commencement of the Constitution (26th Amendment) Act 2024 (of 2024), forthwith stand transferred to the Constitutional Benches and shall only be heard and decided by Benches constituted under clause (3).”.

Amendment of Article 193 of the Constitution:

In the Constitution, in Article 193, in clause (2),- for the rider provision and paragraphs (a) and (b), the following shall be substituted, namely:- “(2) A person shall not be appointed as a Judge of a High Court unless he is a citizen of Pakistan, is not less than forty years of age, and- (a) he has, for a period of not less than ten years, been an advocate of a High Court; or(b) he has, for a period of not less than ten years, held a judicial office in Pakistan.

The draft proposes restructuring of the Judicial Commission and it be comprised of Chief Justice of Pakistan as its head while members comprised of four senior most judges of Supreme Court, federal Minister for Law and Justice. Attorney General of Pakistan, a representative of Pakistan Bar Council for a term of two years, two members from the Senate and two members from the National Assembly of whom two shall be from the treasury benches, one from each House and two from opposition benches, one from each House and the nomination from the treasury benches shall be made by the Leader of House and from opposition benches by the Leader of Opposition.

Provided that during the time when the National Assembly stands dissolved ,the remaining two members for the purpose shall be nominated by from the Senate in the manner as aforesaid, for such period.

A women or non-Muslim qualified to be a member of the Senate as a technocrat, to be nominated by the National Assembly Speaker for a term of two years in the Judicial Commission.

The draft proposed that the Chief Justice of Pakistan (CJP) would be appointed on the recommendation of the Special Parliamentary Committee from amongst the three most senior judges of the Supreme Court.

The committee would send the name to the prime minister who would forward the same to the president for appointment: Provided that where the nominee under this clause declines, the next most senior judge shall be considered by the committee and so on till the appointment of the CJP.

The committee would consist of 12 members -- eight from the National Assembly and four from the Senate:

Each parliamentary party would have proportional representation on the committee, based on their strength in Parliament.

The committee, by majority of its total membership, within 14 days prior to the CJP’s retirement would send the nomination as provided in clause (3): Provided that the first nomination under clause (3), after commencement of the Constitution (26th Amendment) Act 2024, would be sent within three days prior to the retirement of the CJP.

No action or decision taken by the commission or the committee would be invalid or called in question only on the ground of existence of a vacancy therein, or of the absence of any member from any meeting thereof.

The meetings of the committee would be held in camera and the record of its proceedings would be maintained.

The provisions of Article 68 would not apply to the proceedings of the committee. It may make rules for regulating its procedure.

The draft also proposed the that commission would conduct an annual performance of evaluation of judges of the high courts.

If the performance of a judge of high court found by the commission to be inefficient, it shall grant him such period for improvement as it deems appropriate, If upon competition the period granted the performance of such judge is against found to be unsatisfactory, the commission would send its report to the Supreme Judicial Council.

The draft proposed Amendment of Article 179 of the Constitution: “In the Constitution Article 179, for full stop at the end, a colon shall be substituted and thereafter following new provisos shall be added, namely:-‘Provided that the term of the Chief Justice of Pakistan shall be three or unless he sooner resigns or attains the age of sixty-five years or is removed from his office in accordance with the Constitution, whichever is earlier: Provided further that the Chief Justice of Pakistan, on completion term of three years, shall stand retired notwithstanding his age superannuation.”

The text of the draft states that the Judicial Commission would be reconstituted for the appointment of Supreme Court judges and the CJP would be the head of the Judicial Commission, while four most senior SC judges, the federal law minister, attorney general and a representative of the Pakistan Bar Council would be its members.

The draft proposes amendment of Article 38 of the constitution in paragraph which speaks about the elimination of Riba as soon possible has been amended and instead of “as soon as possible” the cut of date of January 1, 2028 was proposed for the elimination of Riba.

The draft proposes amendment of Article 48 of the Constitution and clause (4) of Article 48 and following shall be substituted, “ (4) The question whether any, and if so what, advice was tendered to the President by the Cabinet, or the Prime Minister, shall not be inquired into in, or by any court, tribunal or other authority.”

The proposed draft also proposed the restructuring of Supreme Judicial Council through amending Article 209 of the Constitution

“There shall be a Supreme Judicial Council of Pakistan… and shall consist of- Chief Justice of Pakistan, the two next most senior judges of the Supreme Court, and the two most senior chief justices of the high courts.

A judge of the Supreme Court or a high court would not be removed from office except as provided by this Article. The Council shall issue a code of conduct to be observed by judges of the Supreme Court and the high courts.

Meanwhile, President Asif Ali Zardari and Prime Minister Shehbaz Sharif held a meeting and discussed the proposed amendments.

Both had also meeting on Thursday with the focus on the proposed constitutional amendments.

Meanwhile, inside story of meeting between Maulana Fazl, Shehbaz Sharif and Bilawal Bhutto Zardari on the amendment has come to open amid the reports the distances between the JUIF and government have been widening.

Sources said Shehbaz and Bilawal went to the residence of Maulana Fazl at late Thursday night and during consultation the JUIF chief expressed his reservations on certain things. He held government responsible for formation of forward bloc in the JUIF.

The Maulana said that on one side they were talking about developing consensus and on the other side complaints were pouring in about changing loyalties of his party’s parliamentarians by the government.

“In this situation how the consensus draft bill will be evolved or legislation will be enacted.”

The JUIF PPP and PMLN legal; teams also held consultations on the draft of constitutional amendment.

JUIF Senator Kamran Murtaza expressed some reservations on some points of the government draft.

Maulana Fazl raised the matter of harassing opposition parliamentarians by the government, saying that he was desirous of consensus constitutional amendment.

The government tried to convince the JUIF about its draft. The three leaders agreed on continuing consultation process.

Meanwhile, Prime Minister Shehbaz Sharif made informal consultation with senior cabinet members and took them into confidence on the meeting with Maulana Fazl.

According to sources views were exchanged on PPP and PMLN constitutional amendment drafts during the consultative meeting. Law Minister Azam Nazir Tarar and the attorney general gave briefing on legal and constitutional matters.

Meanwhile, speaking after his appearance in the Peshawar High Court concerning a bail case, Leader of the Opposition in the National Assembly Umar Ayub Khan urged the government to engage in dialogue rather than resorting to intimidation and manipulation regarding the proposed constitutional amendment. The opposition leader criticised Prime Minister Shahbaz and Interior Minister Mohsin Naqvi challenging them to clarify allegations of oppression within the political landscape.

Ayub highlighted the arrest of many PTI members and alleged that offers ranging from one billion to three billion rupees have been made to assembly members to influence their allegiances.

He emphasised that any amendments to the Constitution should involve discussions with opposition parties including representatives from Bar Councils rather than proceeding through coercive measures. The government did not have enough numbers for the constitutional amendment, Ayub asserted, noting that it was the government’s responsibility to secure the required support in the House.

Meanwhile, former Senate chairman Mian Raza Rabbani advised the government to be watchful of the attempts to destabilise the political consensus on the proposed amendmenta.

“Any Constitutional amendment without a political consensus amongst all political stakeholders, will find its place in the dustbin of history,” he warned in a statement. Mian Raza Rabbani said that it will further make the consensus Constitution 1973, controversial. “This will be very dangerous for the Federation,” he said, adding that the federal government should exercise restraint.