Ex-AG, govt’s top legal mind differ on 26th Amendment implications

ISLAMABAD: A top legal mind of the government and a former attorney general of Pakistan differ over the serious implications of the drafting issues relating to the 26th Constitutional Amendment.

The former says that the 26th Amendment talks about the already existing Judicial Commission (JCP) whereas the latter insists the latest amendment constitutes a new commission and the anomaly in the 26th Amendment cannot be corrected without passing a 27th Constitutional Amendment.

Both the government’s legal mind and the former attorney general (who had told The News that a Constitutional Bench cannot be formed without amending the 26th Amendment) are known for their expertise in constitutional and legal matters and enjoy a good reputation.

On Thursday morning, The News received a call from one of the top legal minds of the government who explained the government’s position -- on condition of not being named -- regarding the issues raised in The News story published yesterday (‘Ex-attorney general points out anomaly in 26th Amendment’, October 24).

Following a request by The News, the government’s legal mind shared his view in writing. The point of view of each side regarding the formation of the constitutional benches was exchanged with both sides and is now being shared here for our readers. The government’s legal mind, however, avoided responding to the issue of drafting mistakes relating to the appointment of the CJP. He said, “Moot point, in any event. The CJP-designate has accepted the office and is scheduled to take oath on Saturday morning. Will apply my mind once I have had a chance to carefully read and re-read it.”

Regarding the issue that a constitutional bench can’t be formed — as highlighted by The News on Thursday — the views of both sides are given below:

The government’s top legal mind: “[The] JCP.. .[is] not a newly constituted body. Only membership is being altered. Therefore, on account of vacancy, no proceedings shall be invalidated. Article 175A(3D) caters to this. If it was a new body constituted under the constitution, there could have been an argument (as reflected in The News article). However, in the presence of clause (3D) of Article 175A, there is no problem with the JCP sitting sans the vacancy in its membership!”

Ex-attorney general: “JCP under the 26th Amendment is a newly constituted body which has new members including parliamentarians who were never its members before. After [the] enactment of the 26th Amendment, the old JC has ceased to exist wef from [October 10, 2024]. Article 175A(2) makes it clear as it does not merely amend but substitutes a new Sub-Article which is Article 175A(2) which creates a new JCP. Hence the old JCP has ceased to exist wef [October 21, 2024]. Now only the newly appointed JCP can be convened as the old JCP has no legal existence. Calling a meeting of the old JCP would be a clear violation of a specific newly added provision of the constitution.

“As for invoking Sub-Article 3D, it could only apply when a new body or JCP has already been initially established or constituted. Thereafter if there is any vacancy in its subsequent meetings, 3D will apply. It does not apply to the very first appointment or constitution of a new JCP. If the governmental view is accepted, you can simply ignore or refuse to appoint opposition members and make selections or appointments of your choice in curtailed JCP and then invoke Sub Article 3D. That would be absurd. Imagine, a Parliamentary Committee meeting is convened to select the CJP and you only notify 8 out of 12 members belonging to the government.

“This issue has already been decided by the Lahore High Court in a judgment authored by Justice Mansoor Ali Shah. I, therefore, stand by my views. The weakness in the government argument appears be evident from the fact that they are compelled to resort to such fallback arguments. More so, when these are the core and essence of the 26th Amendment.”

Government’s legal mind: “This is an incorrect reading of the provision and past precedent (judgment of Justice Mansoor Ali Shah). In the case being referred to, the Punjab Revenue Authority was being set up for the first time. There never existed any Punjab Revenue Authority prior to that. Hence, the LHC ruled that the Authority had to be set up first and only then if there was any vacancy would the proceedings of such body (PRA, in that case) get the protection on account of any vacancy or absence.

“The JCP, however, has been in existence since the 19th Amendment. It has not been brought into the constitution for the first time. Only its membership has been altered. Consider a situation, if there was no one occupying the office of law minister or AGP and these offices were vacant, would that have rendered proceedings of the JCP prior to the 26th Amendment redundant? Mind you, the LM or AGP would not just be absent in the foregoing situation, on account of vacancy in these offices, the JCP would also have a vacancy.

“The reading being placed in the above text will simply render Clause (3D) redundant. It is just incorrect to say that a new constitutional body is being created. It’s only the membership of the JCP, which has been in existence, [that] has been changed. Nothing more, nothing less. Moreover, the JCP was constituted under clause (1) of Article 175A, which remains untouched insofar as the constitution of the JCP is concerned. With the only addition of conferring more powers on it. Clause (2) of 175A, which deals with the membership of the JCP, has been amended. Hence, my reading [is] that the existing JCP’s membership has been altered and no new body has been set up or created. Therefore, clause (3D) sufficiently protects the proceedings of the JCP on account of any vacancy.”

Ex-attorney general: “ With profound respect, this is a newly substituted clause. If the constitutional amendment had merely enlarged the old JCP by mere amendment, this might have been a plausible argument. The constitutional amendment does not enlarge the existing JCP by amending the [old] clause. It altogether substitutes the old provision meaning thereby that the old clause and [the] JCP created thereunder are gone. This is a new body which amalgamates the old JCP and Parliamentary Committee and brings into existence a new and altogether different body. For the enlargement of an old body, only amendment is made therein. There is never a substitution as is the case in the 26th Amendment.”