Ex-attorney general points out anomaly in 26th Amendment

ISLAMABAD: The constitutional package passed by parliament in the form of the 26th Amendment has some drafting issues and a ‘serious anomaly’ has been pointed out by a legal expert which, if not addressed through a 27th Amendment, may become a hurdle in the formation of constitutional benches in the Supreme Court.

A former attorney general, who left his office not long ago and who does not wish to be named, told The News that because of the serious anomaly, the new Judicial Commission cannot be created and no constitutional benches can be appointed unless this provision is amended via another constitutional amendment. “In my view, until then the old benches will continue and there will be no constitutional benches”, he said.

The former AG also pointed out confusion and some drafting mistakes in the latest constitutional amendment’s language but his view about the constitutional benches is really alarming. Given this, The News repeatedly tried to contact both Law Minister Azam Nazir Tarar and Attorney General Mansoor Awan but neither of them responded. The view of the former attorney general was also shared with them via WhatsApp, but they did not reply nor offer any comment.

What is the anomaly the former AG found in the creation of the constitutional benches? According to him, “Per Article 191A, constitutional benches are to be nominated and determined by the Judicial Commission. As per Article 175A(1), the Judicial Commission must include the most senior judge or judges of the constitutional benches which are yet to be created. So how can the senior-most judge or judges of the constitutional benches -- which are yet to be appointed by the Judicial Commission -- also be members of Judicial Commission? This creates a serious anomaly as the new Judicial Commission cannot be created and no constitutional benches can be appointed unless this provision is amended by parliament via a 27th Constitutional Amendment. In my view, until then the old benches will continue and there will be no constitutional benches.”

The media is already talking about the confusion in the procedure adopted for the appointment of the CJP. This confusion pertains to a possible situation where a nominee among the three senior-most judges does not accept the offer. The new constitutional amendment apparently suggests that in such a case a judge from among the other two of the three senior-most judges would be considered for the top slot.

However, some key cabinet members and even some members of the Special Parliamentary Committee, which selects the name from the panel of three for the CJP, did not know what is reflected in the new constitutional provisions. At least two members of the committee, when contacted by The News, said that the fourth senior-most judge can be considered if a nominee among the top three declines to become the CJP.

On this issue, the former attorney general told The News, “For the appointment of CJP, Article 175A (3) envisages a three stage process. In the first stage, the Special Parliamentary Committee sends one nominee from amongst the three senior-most judges of the SC. Suppose they recommend any one of the three or even the third senior most judge and he accepts the nomination, the matter ends there. However, if he declines, then we have to move to the first proviso.

“Step 2 is the first proviso under which the consideration would be of ‘a judge from the remaining judges amongst the three most senior judges’. On a plain reading, this means the consideration has to be from the remaining two judges who are from ‘amongst the three most senior judges’. This interpretation is supported by use of the words ‘from the remaining amongst the three senior most’. If you imagine a comma after decline, it is even clearer. Hence one of two -- namely Justice Mansoor or Justice Munib -- could be considered (in case Justice Yahya declined). This is further supported by use of the word ‘also’ in the second proviso. Also is only used for the second refusal or decline and not the first refusal or decline. Only when there are two declines from amongst the three senior most judges, can we move to the second proviso.

“Step 3 is the second proviso under which the fourth senior-most judge can then be considered and offered and so on. This makes sense because the committee must first exhaust names from among the three most senior judges. The committee is conferred discretion to reverse priorities from amongst the three senior-most judges. Only when at least two judges decline can the committee move to the fourth senior judge. That is how I read this provision.”

He added, “The government’s interpretation -- that after the first decline they can go to number four -- seems to be against the plain language of the provision. If instead of a judge from amongst the three senior most, they had used the words ‘other than three senior most judges’, their interpretation would prevail.”

Fakhar Durrani adds: Legal and constitutional experts are divided on the anomaly pointed out by the former attorney general. Justice Wajihuddin Ahmed says that if the senior-most judges are nominated as members of the constitutional benches and the Judicial Commission then there will be no need for any amendment. “There is a need for synchronisation and harmonisation of various provisions of the constitution”, he said.

According to senior lawyer and constitutional expert Waseem Sajjad, if what the former attorney general is saying is factually correct, then it is a valid observation.

Former attorney general Irfan Qadir believes that if two or three members of the Judicial Commission are not available for the constitution of the constitutional benches then the available members can decide the constitutional benches. There is no need for any constitutional amendment for this purpose.