Parliament gains the upper hand over judiciary through 26th Constitutional Amendment: Ruling coalition gets its way, finally

ISLAMABAD: The coalition government on Sunday finally powered the 26th Constitutional Amendment Bill, 2024, through the Senate, capping the Chief Justice of Pakistan’s (CJP) tenure at three years, despite opposition from the Pakistan Tehreek-e-Insaf (PTI).

After passage from the Upper House, the bill landed in the National Assembly, which started clause-by-clause consideration of the Constitution amendment bill at 3.30am. The motion moved by Law Minister Azam Nazeer Tarar was carried with 225 votes, one more than the two-thirds of the majority. The motion was opposed by 12 opposition members sitting in the House.

The bill was tabled hours after the federal cabinet approved the draft amendments after hanging in balance for weeks. The house voted 65-4 to approve the 26th Constitutional Amendment Bill with the required two-third majority.

In the session, 23 senators from Pakistan Peoples Party (PPP), 19 from Pakistan Muslim League-Nawaz (PMLN), five from Jamiat Ulema-e-Islam Fazl (JUIF) and four from Balochistan Awami Party (BAP) voted in favour of the constitutional package.

Additionally, four independent senators, two from Balochistan National Party (BNP), three from Awami National Party (ANP) and three from the Muttahida Qaumi Movement Pakistan (MQM-P) supported the bill during the voting.

One senator each from Pakistan Muslim League-Quaid (PMLQ) and the National Party also voted in favour of the bill. However, the Pakistan Tehreek-e-Insaf staged a walkout from the Upper House.

After its passage from the Senate, the draft’s passage was laid before the National Assembly.

Addressing the assembly session, the opposition leader Omar Ayub rejected the amendments as an attempt to strangle the judiciary.

JUIF chief Maulana Fazlur Rahman said that he had been consistently in consultation with the PTI over the constitutional amendments. He implied that the amendments draft addressed concerns of the PTI also, adding the PTI is not taking part in the voting in protest against its leader’s condition in jail. He said that reports reaching him about Imran Khan’s condition in jail were not good.

He said the constitutional amendments’ draft at hand is quite different from the original one.

Fazl highlighted Islamic clauses of the amendment.

Addressing the House, Nawaz Sharif recited a couplet to highlight the “highhandedness” of the judiciary over the years.

Barrister Gohar Ali Khan said the it’s the blackest day in the history of Pakistan. “The way you critcized independent judiciary tonight, you did not even criticized PM Modi and Kulbhushan in strong words”, he said.

He said it was Mian Nawaz Sharif on whose request, the Supreme Court constituted Memogate Commission headed by Justice Qazi Faez Issa. “People will forget Justice Munir once Justice Faez Issa departs”, he said.

Earlier, Mian Nawaz Sharif stood in his seat recited some poetry having complains against judiciary. “I expect you also recite poetry remembering that you were quoted by the International Court of Justice”, Gohar said.

“You cannot pass the constitutional amendment when the House is incomplete and reserved seats are yet to be notified,” he said.

The 26th Constitutional Amendment Bill includes 22 amendments to different clauses of the Constitution that fix the tenure of Chief Justice of Pakistan to three years 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.

The chief justice will be appointed on the recommendation of a special parliamentary committee. The parliamentary committee will appoint the Chief Justice of Pakistan from among the three senior most judges of the Supreme Court.

On the recommendation of the committee, the prime minister will send the name of the Chief Justice to the President. In case of refusal of a judge, the name of the next senior judge will be considered.

A 12-member special parliamentary committee will be formed to appoint the Chief Justice. After the approval of the constitutional amendment, the name will be sent for the first time three days before the retirement of Chief Justice Qazi Faez Isa.

Later, the parliamentary committee will send the names 14 days before for the appointment of Chief Justice. All the parliamentary parties will have proportional representation in the parliamentary committee. The parliamentary committee will consist of 8 members of the National Assembly and 4 members of the Senate.

The constitutional benches will be formed in the Supreme Court and High Courts.

As per the amendments regarding the Constitutional Benches of the Supreme Court.– (1) There shall be Constitutional Benches of the Supreme Court 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: Provided that the Constitutional Benches may comprise equal number of Judges from each Province. (2) The most senior Judge amongst Judges nominated under clause (1) shall be the most senior Judge of the Constitutional Benches. (3) No bench of the Supreme Court other than a Constitutional Bench shall exercise following jurisdictions vested in the Supreme Court, namely:– (a) original jurisdiction of the Supreme Court under Article 184; (b) appellate jurisdiction of the Supreme Court under clause (3) of Article 185, where a judgment or order of a High Court involves constitutionality of any law or a substantial question of law as to the interpretation of the Constitution; and (c) advisory jurisdiction of the Supreme Court under Article 186. (4) For the purposes of clause (3), a bench consisting of not less than five Judges, to be nominated by a committee comprising the most senior Judge of the Constitutional Benches and next two most senior Judges from amongst the Judges nominated under clause (1), shall hear and dispose of such matters. (5) All petitions, appeals or review applications against judgments rendered or orders passed, to which clause (3) applies, pending or filed in the Supreme Court prior to commencement of the Constitution (Twenty-sixth Amendment) Act, 2024 ( of 2024), forthwith stand transferred to the Constitutional Benches and shall only be heard and decided by Benches constituted under clause (4). (6) Notwithstanding anything contained in the Constitution but subject to law, the Judges nominated under clause (1) may make rules regulating the practice and procedure of the Constitutional Benches.” The Judicial Commission will determine the number of constitutional benches and judges. The most senior Judge of the Constitutional Benches shall be the head of the Constitution Benches. As far as possible, equal judges from all provinces will be appointed in the Constitution Benches

“202A. Constitutional Benches of High Courts.

— There shall be Constitutional Benches of a High Court comprising such Judges of a High Court and for such term as may be nominated and determined by the Judicial Commission of Pakistan as constituted under clause (5) of Article 175A, from time to time: (2) The most senior Judge amongst Judges nominated under clause (1) shall be the Head of the Constitutional Benches. (3) No Bench of a High Court other than a Constitutional Bench shall exercise jurisdiction vested in the High Court under sub-paragraph (i) of paragraph (a) and paragraph (c) of clause (1) of Article 199. (4) For the purposes of clause (1), a Bench, to be nominated by a committee comprising the head of the Constitutional Benches and next two most senior Judges from amongst the Judges nominated under clause (1), shall hear and dispose of such matters. (5) All petitions under sub-paragraph (i) of paragraph (a) and paragraph (c) of clause (1) of Article 199 or appeals therefrom, pending or filed in a High Court prior to commencement of the Constitution (Twenty-sixth Amendment) Act, 2024 (of 2024), subject to clause (7), forthwith stand transferred to the Constitutional Benches and shall only be heard and decided by Benches constituted under clause (4). (6) Notwithstanding anything contained in the Constitution but subject to an Act of Majlis-e-Shoora (Parliament) in respect of the Islamabad High Court and an Act of Provincial Assembly in respect of other respective High Courts, a High Court may make rules regulating the practice and procedure of the Constitutional Benches. This Article shall come into force, if in respect of– (a) the Islamabad High Court, both Houses of Majls-e-Shoora (Parliament) in the joint sitting; and (b) a High Court, the respective Provincial Assembly, through a resolution passed by majority of the total membership of the joint sitting or the respective Provincial Assembly, as the case may be, give effect to the provisions of this Article.”. (c) a High Court, the respective Provincial Assembly, through a resolution passed by majority of the total membership of the joint sitting or the respective Provincial Assembly, as the case may be, give effect to the provisions of this Article.”.

Under Article 184, the power of suo motu notice will rest with the Constitution Benches. The cases relating to the interpretation of the Constitution under Article 185 will come under the jurisdiction of the Constitutional Benches. The advisory powers under Article 186 shall also belong to the Constitution Benches. Under Article 184 III, the Supreme Court cannot issue any direction or declaration on its own.

Under Article 186A, the Supreme Court can transfer any High Court case to any other High Court or to itself. The Judicial Commission will review the annual performance of the High Court judges.

The Supreme Court judges will be appointed by the judicial commission. The Judicial commission chaired by the Chief Justice will also have the senior-most judge of the constitution benches. The Judicial Commission will include three senior judges of the Supreme Court, Federal Law Minister and Attorney General will also be members of the commission

1. Amendment of Article 203C of the Constitution.- In the Constitution, in Article 203C, in clause (3), after the words “High Court”, the words “or a Judge of the Federal Shariat Court qualified to be a Judge of the Supreme Court” shall be inserted.

2. Amendment of Article 203D of the Constitution.- In the Constitution, in Article 203D, in clause (2), in the proviso, for the full stop at the end, a colon shall be substituted and thereafter the following new proviso shall be added, namely:- “Provided further that appeal against decision given after the commencement of the Constitution (Twenty-sixth Amendment) Act, 2024 (of 2024) shall be disposed of within twelve months whereafter the decision shall take effect unless suspended by the Supreme Court.”. 3. Amendment of Article 208 of the Constitution.- In the Constitution, in Article 208, for the words “Supreme Court and the Federal Shariat Court”, the expression “Supreme Court, the Federal Shariat Court and the Islamabad High Court” shall be substituted.

4. Substitution of Article 209 of the Constitution.- In the Constitution, for Article 209, the following shall be substituted, namely:– “209. Supreme Judicial Council.- (1) There shall be a Supreme Judicial Council of Pakistan, in this Chapter referred to as the Council. (2) The Council shall consist of– (a) the Chief Justice of Pakistan; (b) the two next most senior Judges of the Supreme Court; and (c) the two most senior Chief Justices of the High Courts. Explanation.- For the purpose of this clause, the inter se seniority of the Chief Justices of the High Courts shall be determined with reference to their dates of appointment as Chief Justice otherwise than as acting Chief Justice, and in case the dates of such appointment are the same, with reference to their dates of appointment as Judges of the High Courts. (3) If at any time, the Council is inquiring into the capacity, efficiency or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or any other cause, then if such member is the– (a) Chief Justice or Judge of the Supreme Court, the Judge of the Supreme Court who is next in seniority below the Judges referred to in paragraph (b) of clause (2); and (b) Chief Justice of a High Court, the Chief Justice of another High Court who is next in seniority amongst the Chief Justices of the remaining High Courts, shall act as a member of the Council in his place. (4) If, upon any matter inquired into by the Council, there is a difference of opinion amongst its members, the opinion of the majority shall prevail, and the report of the Council to the President shall be expressed in terms of the view of the majority. (5) If, on information from any source or the report from the Commission under clause (19) of Article 175A, the Council or the President is of the opinion that a Judge of the Supreme Court or of a High Court- (a) may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or (b) may be inefficient in the performance of the duties of his office; or (c) may have been guilty of misconduct, the Council, on its own motion or on receipt of report from the Commission under clause (19) of Article 175A or on the direction of the President, shall inquire into the matter. (6) If, after inquiring into the matter, without unnecessary delay and in case of report or direction under clause (5), within six months, the Council reports to the President that it is of the opinion that– (a) the Judge is incapable of performing the duties of his office or is found inefficient in performance of the duties of his office or has been guilty of misconduct; and (b) he should be removed from office, the President may remove the Judge from office. (7) A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article. (8) The Council shall issue a code of conduct to be observed by Judges of the Supreme Court and the High Courts. (9) Subject to the rules made by the Council, there shall be a secretariat of the Council to be headed by a secretary and shall include such other officers and staff, as may be necessary.”

5. Amendment of Article 215 of the Constitution.- In the Constitution, in Article 215, in clause (1),– (A) after the first proviso, the following new proviso shall be inserted, namely:– “Provided further that the Commissioner and a member shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon the office:”; and (B) in the existing second proviso, for the word “further”, the word “also” shall be substituted.

6. Amendment of Article 229 of the Constitution.- In the Constitution, in Article 229, for the expression “two-fifths”, the expression “one-fourth” shall be substituted.

7. Amendment of Article 230 of the Constitution.- In the Constitution, in Article 230, in clause (4), for the full stop at the end, a colon shall be substituted and thereafter the following proviso shall be added, namely:- “Provided that the final report shall be considered within twelve months after it has been laid.”

8. Amendment of Article 255 of the Constitution.- In the Constitution, in Article 255, in clause (2), for the words “that person”, occurring at the end, the expression “the Chief Justice of a High Court, in case of a Province and by the Chief Justice of Pakistan, in all other cases” shall be substituted.

9. Amendment of Article 259 of the Constitution.- In the Constitution, in Article 259, in clause (2), for the words “or nursing”, the expression”, science, technology, medicine, arts or public service” shall be substituted.

10. Amendment of the Fourth Schedule to the Constitution.- In the Constitution, in the Fourth Schedule, in PART I, in entry 2, after the expression “cantonment areas,”, the expression “local taxes, fees, cess, charges, tolls in such areas,” shall be inserted. A lawyer nominated by the Pakistan Bar Council with at least 15 years of experience shall be a member of the Commission for two years. Two members of the National Assembly and two members of the Senate Commission will be part of it. A woman or non-Muslim qualified as a technocrat in the Senate will also be made a member of the commission for two years. Amendment of Article 38, Interest will be phased out by January 1, 2028.

Amendment of Article 48 under which no court, tribunal or authority can question the advice sent by the Prime Minister or the Cabinet to the President. After the retirement of the Chief Election Commissioner or the member, he will continue to work till the new appointment.

11. Amendment of Article 185 of the Constitution.- In the Constitution, in Article 185, in clause (2), in paragraph (d), for the words “fifty thousand”, the words “one million” shall be substituted.

12. Substitution of Article 186A of the Constitution.- In the Constitution, for Article 186A, the following shall be substituted, namely:– “186A. Power of Supreme Court to transfer cases.- The Supreme Court may, if it considers it expedient to do so in the interest of justice, transfer any case, appeal or other proceedings, pending before any High Court to any other High Court or to itself.”

13. Amendment of Article 187 of the Constitution.- In the Constitution, in Article 187, in clause (1), for full stop at the end, a colon shall be substituted and thereafter the following proviso shall be added, namely:– “Provided that no order under this clause shall be passed otherwise than in pursuance of any jurisdiction vested in and exercised by the Supreme Court.”.

14. Insertion of new Article 191A of the Constitution.- In the Constitution, after Article 191, the following new Article 191A shall be inserted, namely:- “191A. Constitutional Benches of the Supreme Court.– (1) There shall be Constitutional Benches of the Supreme Court 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: Provided that the Constitutional Benches may comprise equal number of Judges from each Province. (2) The most senior Judge amongst Judges nominated under clause (1) shall be the most senior Judge of the Constitutional Benches. (3) No Bench of the Supreme Court other than a Constitutional Bench shall exercise following jurisdictions vested in the Supreme Court, namely:– (a) original jurisdiction of the Supreme Court under Article 184; (b) appellate jurisdiction of the Supreme Court under clause (3) of Article 185, where a judgment or order of a High Court involves constitutionality of any law or a substantial question of law as to the interpretation of the Constitution; and (c) advisory jurisdiction of the Supreme Court under Article 186. (4) For the purposes of clause (3), a Bench consisting of not less than five Judges, to be nominated by a committee comprising the most senior Judge of the Constitutional Benches and next two most senior Judges from amongst the Judges nominated under clause (1), shall hear and dispose of such matters. (5) All petitions, appeals or review applications against judgments rendered or orders passed, to which clause (3) applies, pending or filed in the Supreme Court prior to commencement of the Constitution (Twenty-sixth Amendment) Act, 2024 (of 2024), forthwith stand transferred to the Constitutional Benches and shall only be heard and decided by Benches constituted under clause (4). (6) Notwithstanding anything contained in the Constitution but subject to law, the Judges nominated under clause (1) may make rules regulating the practice and procedure of the Constitutional Benches.”

15. Amendment of Article 193 of the Constitution.- In the Constitution, in Article 193, for clause (2), 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. Explanation.- In computing the period during which a person has been an advocate of a High Court or has held judicial office, there shall be included any period during which he has held judicial office after he became an advocate or, as the case may be, the period during which he has been an advocate after having held judicial office.”.

16. Amendment of Article 199 of the Constitution.- In the Constitution, in Article 199, after clause (1), the following new clause (1A) shall be inserted, namely:– “(1A) For removal of doubt, the High Court shall not make an order or give direction or make a declaration on its own or in the nature of suo motu exercise of jurisdiction beyond the contents of any application filed under clause (1).”.

17. Insertion of Article 202A of the Constitution.- In the Constitution, after Article 202, the following new Article 202A shall be inserted, namely:- “202A. Constitutional Benches of High Courts.– (1) There shall be Constitutional Benches of a High Court comprising such Judges of a High Court and for such term as may be nominated and determined by the Judicial Commission of Pakistan as constituted under clause (5) of Article 175A, from time to time: (2) The most senior Judge amongst Judges nominated under clause (1) shall be the head of the Constitutional Benches. (3) No Bench of a High Court other than a Constitutional Bench shall exercise jurisdiction vested in the High Court under sub-paragraph (i) of paragraph (a) and paragraph (c) of clause (1) of Article 199. (4) For the purposes of clause (1), a Bench, to be nominated by a committee comprising the Head of the Constitutional Benches and next two most senior Judges from amongst the Judges nominated under clause (1), shall hear and dispose of such matters. (5) All petitions under sub-paragraph (i) of paragraph (a) and paragraph (c) of clause (1) of Article 199 or appeals therefrom, pending or filed in a High Court prior to commencement of the Constitution (Twenty-sixth Amendment) Act, 2024 (of 2024), subject to clause (7), forthwith stand transferred to the Constitutional Benches and shall only be heard and decided by Benches constituted under clause (4). (6) Notwithstanding anything contained in the Constitution but subject to an Act of Majlis-e-Shoora (Parliament) in respect of the Islamabad High Court and an Act of Provincial Assembly in respect of other respective High Courts, a High Court may make rules regulating the practice and procedure of the Constitutional Benches. (7) This Article shall come into force, if in respect of– (d) the Islamabad High Court, both Houses of Majls-e-Shoora (Parliament) in the joint sitting; and (e) a High Court, the respective Provincial Assembly, through a resolution passed by majority of the total membership of the joint sitting or the respective Provincial Assembly, as the case may be, give effect to the provisions of this Article.”

18. Amendment of Article 203C of the Constitution.- In the Constitution, in Article 203C, in clause (3), after the words “High Court”, the words “or a Judge of the Federal Shariat Court qualified to be a Judge of the Supreme Court” shall be inserted.

19. Amendment of Article 203D of the Constitution.- In the Constitution, in Article 203D, in clause (2), in the proviso, for the full stop at the end, a colon shall be substituted and thereafter the following new proviso shall be added, namely:- “Provided further that appeal against decision given after the commencement of the Constitution (Twenty-sixth Amendment) Act, 2024 (of 2024) shall be disposed of within twelve months whereafter the decision shall take effect unless suspended by the Supreme Court.”

20. Amendment of Article 208 of the Constitution.- In the Constitution, in Article 208, for the words “Supreme Court and the Federal Shariat Court”, the expression “Supreme Court, the Federal Shariat Court and the Islamabad High Court” shall be substituted.

21. Substitution of Article 209 of the Constitution.- In the Constitution, for Article 209, the following shall be substituted, namely:– “209. Supreme Judicial Council.- (1) There shall be a Supreme Judicial Council of Pakistan, in this Chapter referred to as the Council. (2) The Council shall consist of– (a) the Chief Justice of Pakistan; (b) the two next most senior Judges of the Supreme Court; and (c) the two most senior Chief Justices of the High Courts. Explanation.- For the purpose of this clause, the inter se seniority of the Chief Justices of the High Courts shall be determined with reference to their dates of appointment as Chief Justice otherwise than as acting Chief Justice, and in case the dates of such appointment are the same, with reference to their dates of appointment as Judges of the High Courts. (3) If at any time, the Council is inquiring into the capacity, efficiency or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or any other cause, then if such member is the– (a) Chief Justice or Judge of the Supreme Court, the Judge of the Supreme Court who is next in seniority below the Judges referred to in paragraph (b) of clause (2); and (b) Chief Justice of a High Court, the Chief Justice of another High Court who is next in seniority amongst the Chief Justices of the remaining High Courts, shall act as a member of the Council in his place. (4) If, upon any matter inquired into by the Council, there is a difference of opinion amongst its members, the opinion of the majority shall prevail, and the report of the Council to the President shall be expressed in terms of the view of the majority. (5) If, on information from any source or the report from the Commission under clause (19) of Article 175A, the Council or the President is of the opinion that a Judge of the Supreme Court or of a High Court- (a) may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or (b) may be inefficient in the performance of the duties of his office; or (c) may have been guilty of misconduct, the Council, on its own motion or on receipt of report from the Commission under clause (19) of Article 175A or on the direction of the President, shall inquire into the matter. (6) If, after inquiring into the matter, without unnecessary delay and in case of report or direction under clause (5), within six months, the Council reports to the President that it is of the opinion that– (a) the Judge is incapable of performing the duties of his office or is found inefficient in performance of the duties of his office or has been guilty of misconduct; and (b) he should be removed from office, the President may remove the Judge from office. (7) A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article. (8) The Council shall issue a code of conduct to be observed by Judges of the Supreme Court and the High Courts. (9) Subject to the rules made by the Council, there shall be a secretariat of the Council to be headed by a secretary and shall include such other officers and staff, as may be necessary.”

22. Amendment of Article 215 of the Constitution.- In the Constitution, in Article 215, in clause (1),– (C) after the first proviso, the following new proviso shall be inserted, namely:– “Provided further that the Commissioner and a member shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon the office:”; and (D) in the existing second proviso, for the word “further”, the word “also” shall be substituted.

23. Amendment of Article 229 of the Constitution.- In the Constitution, in Article 229, for the expression “two-fifths”, the expression “one-fourth” shall be substituted.

24. Amendment of Article 230 of the Constitution.- In the Constitution, in Article 230, in clause (4), for the full stop at the end, a colon shall be substituted and thereafter the following proviso shall be added, namely:- “Provided that the final report shall be considered within twelve months after it has been laid.”.

25. Amendment of Article 255 of the Constitution.- In the Constitution, in Article 255, in clause (2), for the words “that person”, occurring at the end, the expression “the Chief Justice of a High Court, in case of a Province and by the Chief Justice of Pakistan, in all other cases” shall be substituted.

26. Amendment of Article 259 of the Constitution.- In the Constitution, in Article 259, in clause (2), for the words “or nursing”, the expression”, science, technology, medicine, arts or public service” shall be substituted.

27. Amendment of the Fourth Schedule to the Constitution.- In the Constitution, in the Fourth Schedule, in PART I, in entry 2, after the expression “cantonment areas,”, the expression “local taxes, fees, cess, charges, tolls in such areas,” shall be inserted. Amendment of Articles 229 and 230, An opinion can be taken from the Islamic Ideological Council on the legislation to be passed in the Parliament or Provincial Assemblies. Any matter can be referred to the Islamic Ideological Council with the support of 25 percent of the members.