By Agha Iqrar Haroon
Islamabad, Pakistan: In a historic move, the parliament of Pakistan reclaimed its supremacy, which had been encroached upon by the higher judiciary, by rewriting the constitution by giving verdicts on different constitutional petitions.
One of the significant events of the day was PTI’s decision not to vote for the abolition interest-based economy (Soodi Nizam) in the country, raising the brows of a majority of journalists present in the Press Galleries of the Senate as well as of the National Assembly. PTI decided to absentia status during the 26th Constitutional amendment which is also known as the Constitutional amendment package. However, PTI had an opportunity to support the abolition of an interest-based economy when voting was being done ‘clause by clause’. Even those journalists who are known as PTI’s sympathizers were expecting that PTI would vote in favor of removing the interest-based economy in the country.
Senior journalists present in Parliament House such as Jawwad Faizi, Ijaz Ahmed, Dr Sajjad Bokhari, Ahmed Mansoor, and Tariq Ch when asked to comment on PTI’s decision to avoid voting on the abolition of an interest-based economy in the country, were of the view that PTI could not see beyond its founding Chairman and for PTI everything starts and end at him.
Voting in the Senate exposed that the allegation of PTI’s Chairman Barrister Gohar against PTI’s Senators Zarqa and Faisal Saleem was false and they did not vote for treasury benches and did not defect their party.
The government and the allies have finally passed the 26th Constitutional Amendment and this was a historic constitutional decision to establish parliamentary supremacy over the judiciary of the government. Instead of appointing the Chief Justice, the old method of appointing a senior most judge, now a twelve-member special parliamentary committee will select one of the names of three senior Most Judges as Chief Justice, whose final approval is Prime Minister.
The parliamentary committee will have a proportional representation of all parliamentary parties. This key process has ended the monopoly of the judiciary itself as the Chief Justice of the judiciary.
The procedure for the appointment of judges of the Supreme Court has also been imposed under the influence of the parliament in which the Supreme Court judges will appoint a commission. The commission, headed by the Chief Justice, will include four senior judges. The Federal Minister for Law and Attorney General will also be members of the commission. The lawyer nominated by the Pakistan Bar Council, who has been experienced for less than 15 years, will be a member of the Commission for two years. Two members will be part of the National Assembly and two members of the Senate Commission. – A woman or non -Muslim with a technocratic qualification in the Senate will also be made a member of the commission for two years.
Similarly, the formation of a constitutional bench the Judicial Commission will determine the number of constitutional benches and judges. Constitutional benches will be appointed as equal judges from all the provinces as far as possible under Article 184, the self-novice will be authorized by the Constitutional Benches. Cases related to the interpretation of the Constitution will be under constitutional benches under Article 185. The constitutional bench will consist of at least five judges. A committee of three senior judges will appoint constitutional benches.
This important amendment will increase the judiciary’s performance significantly as the constitutional bench will only listen to constitutional matters while the rest of the public. The cases related to the Supreme Court will continue to be as usual.
Similarly, no court, tribunal, or authority can raise questions on the advice sent by the Prime Minister or the Cabinet to the President. This will eliminate the judiciary’s government’s administrative affairs and the government with full independence.
The performance of the judges has also been developed. The Commission will review the performance of the High Court Judges, and if a judge does not improve his performance, his case will be sent to the Judicial Council.
Pakistani citizenship of all the Supreme Court and High Court judges is mandatory. In addition, their extensive experience of advocacy, and the experience of being a judge in the lower court also include a prerequisite.
Therefore, the 26th amendment to its Pakistani constitutional and judicial history is a milestone, which will certainly improve the supremacy of parliament in Pakistan and the judiciary’s performance.
What are important amendments?
- Addition of Article 9A (clean and healthy environment) and amendments to Articles 38 (promotion of social and economic well-being of the people), 48 (president to act on advice, etc), and 81 (expenditure charged upon Federal Consolidated Fund) of the Constitution.
- No court will be able to question the recommendations sent to the President or the Prime Minister by the cabinet. The draft also includes a proposal to increase the number of members in the Judicial Commission of Pakistan by amending Article 175A (appointment of Judges to the Supreme Court, High Courts, and the Federal Shariat Court).
- The Supreme Judicial Commission will include the chief justice, four senior judges from the Supreme Court, and four members of Parliament. Among these, one senator and one member of the National Assembly will be nominated by the PM while another senator and another member will be nominated by the leader of the Opposition in the National Assembly.
- The parliamentary committee responsible for judicial appointments will consist of 12 members, with eight from the National Assembly and four from the Senate.
- Instead of directly appointing a senior judge as chief justice of the Supreme Court, the proposal states that three names will be submitted to the parliamentary committee. This 12-member committee will recommend one of these names for the chief justice position. Subsequently, the prime minister will advise the President to issue a notification regarding the appointment.
- The term for the chief justice will be three years. If a Chief Justice reaches the retirement age of 65 during this period, they will still be considered to have served a full three-year term. If a high court judge’s performance is deemed unsatisfactory, the Supreme Judicial Council will provide the judge with an opportunity to improve. If the judge fails to enhance their performance within the designated timeframe, the matter will be addressed by the Supreme Judicial Council. The Judicial Council can establish separate rules and regulations to evaluate the performance of judges.
- Amendment to Sub-clause 3 of Section 184 regarding the Supreme Court’s power to take suo motu notices. It states that the Supreme Court will not have the authority to take notice of any matter or to issue directions to any institution.
- A three-member committee of Supreme Court judges, established under the Practice and Procedure Act, will make decisions regarding whether or not to take notice of a case.
- The amendment allows the SC to transfer cases from one high court to another if it believes that justice is not being served in an ongoing case.
- An amendment to Clause 1 of Article 199 of the Constitution, now referred to as Clause 1A, which pertains to the high court’s power to take suo motu notices.
- The high court shall not have the authority to take suo motu notices on any matter or issue directives to any institution.
- The judicial commission would determine the number of constitutional benches and judges, ensuring that, where possible, equal representation of judges from all provinces is maintained in the constitutional benches.
- Article 203D of the Constitution has been added, mandating that any appeal must be resolved by the relevant high court within 12 months. Article 191A has been added which pertains to the formation of constitutional benches.
