October 22, 2024
ISLAMABAD – The International Commission of Jurists (ICJ) derided Monday’s passage of the 26th Constitutional Amendment into law following the approval of both houses of parliament as a “blow to judicial independence”.
Pakistani politics saw a second “working weekend” in as many months, where the ruling coalition finally succeeded in passing the much-touted ‘Constitutional Package’ with a two-thirds majority in both the Senate and the National Assembly.
The 26th Amendment brings changes to the Constitution, most of which pertain to the judiciary. Some main reforms include taking away the Supreme Court’s suo motu powers, setting the chief justice of Pakistan’s (CJP) term at three years, and empowering the prime minister to appoint the next CJP from among the three most senior SC judges.
On Sunday, the bill, which had 22 clauses, was greenlit by the Senate with a two-thirds majority. Then, during a session that began late on Sunday night and continued past 5am on Monday, the NA also passed it with a two-thirds majority. The NA-approved version had 27 clauses after incorporating suggestions made by the Senate.
Following the conclusion of parliamentary procedures, Prime Minister Shehbaz Sharif, according to Radio Pakistan, sent his advice to President Zardari for his assent on the newly enacted law — titled ‘The Constitution (26th Amendment) Act, 2024’.
An NA secretariat notification published in the Gazette today, a copy of which is available with Dawn.com, read that the Act with 27 clauses “received the assent of the President on the 21st October, 2024”.
In a statement shared on its X account, state broadcaster PTV News said: “According to the Constitutional Amendment, the new chief justice will be appointed by the parliamentary committee.
“The federal government has decided to constitute the parliamentary committee to appoint the chief justice,” it added.
Under the Amendment, the country’s top judge will now be “appointed on the recommendation of the Special Parliamentary Committee from amongst the three most senior” Supreme Court judges.
Reacting to the development, the ICJ said the amendment was “a blow to judicial independence, the rule of law, and human rights protection”.
In a statement issued today, ICJ Secretary General Santiago Canton said the changes brought an “extraordinary level of political influence over the process of judicial appointments and the judiciary’s own administration.
“They erode the judiciary’s capacity to independently and effectively function as a check against excesses by other branches of the State and protect human rights.”
The ICJ criticised the swiftness with which the bill became an act, saying that draft amendments were kept secret, and there were no public consultations on the proposals before they were introduced in and passed by parliament.
“It is alarming a Constitutional Amendment of great significance and public interest was passed in such a secretive manner and in less than 24 hours.
“The core principle of the rule of law and the separation of powers according to which citizens and their freely chosen representatives have the right to participate in the legislative process culminating in the adoption and enactment of laws was flagrantly violated in this case,” Canton said.
The ICJ pointed out that the changes in the amendment “seriously undermine the independence of the judiciary by unduly subjecting it to executive and parliamentary control”.
Assailing the changes to the Judicial Commission of Pakistan’s (JCP) composition, the ICJ said they would “allow for direct political influence over it and reduce the JCP’s judicial members to a minority”.
It said that giving the JCP the power to make constitutional benches would allow the body to create “tailored-made judicial benches to hear specific cases”, including cases of political significance. “As a result, there is serious concern that these JCP-appointed benches will not be independent and impartial,” it added.
Regarding the changes to the process for the chief justice of Pakistan’s appointment, the ICJ said the amendment provided no grounds or criteria on the basis of which a special parliamentary committee will nominate the top judge.
It also criticised changes pertaining to the removal of inefficient judges, saying that the amendment neither defined inefficiency nor did it establish a threshold or criteria for inefficiency.
“The ICJ understands that some reforms to the existing judicial system may have been needed to make the courts more efficient and accountable, and the judicial appointment process more transparent and inclusive.
“But these amendments are an attempt to subjugate the judiciary and bring it under the control of the executive, betraying fundamental principles of the rule of law, separation of powers and the independence of the judiciary,” Canton said.
Parliamentary sovereignty reinforced: Govt hails tweaks
Following the passage of the bill in the NA, PM Shehbaz delivered a speech, wherein he congratulated the parliament for the “historical achievement”.
Interior Minister Mohsin Naqvi, in a statement reported by PTV News, also congratulated the nation, saying that Maulana Fazlur Rehman’s “positive and historical role” in the process would always be remembered.
“Parliamentary sovereignty reinforced”, Information Minister Attaullah Tarar wrote on X after the passage of the 26th Amendment.
Punjab Chief Minister Maryam Nawaz termed the legislation “clear message that the voice of the masses was paramount”, according to PTV News.
She added that the Amendment would ensure “speedy justice” by opening the path to “positive reforms”.
MNA Aseefa Bhutto-Zardari appreciated the dedication of her brother, PPP Chairman Bilawal Bhutto-Zardari, to “ensuring the 26th Amendment pass[ed] successfully with consensus”.
“He has proven yet again to be a leader willing to compromise for the betterment of Pakistan. His belief in the Constitution of Pakistan and his commitment to strengthening it is unmatched,” Aseefa said in a post on X.
PTI assails ‘conscience of turncoats’
The PTI assailed the “conscience” of lawmakers affiliated with it who voted in favour of the Amendment.
“They won votes on Imran Khan’s name and sold their vote to the same mafia against whom the public gave them the mandate!” the party said on its X account, sharing pictures of the said lawmakers and terming them “seditious”.
“These conscience-sellers would be counted among the darkest characters in Pakistan’s history,” it added.
Well before the 26th Amendment was put to vote in Senate, the PTI announced it would hold protests outside the residences of those who would defy party policy by voting in the legislation’s favour.
Separately, PTI MNA Zain Qureshi, the son of former foreign minister Shah Mahmood Qureshi, denied rumours that he voted in favour of the Amendment.
“I completely condemn and deny this,” Qureshi said in a video message posted on X, adding that he wanted to ensure the PTI members, the people of his constituency and his family that he “couldn’t even imagine” voting for the Amendment.
Qureshi specified that he recorded the video before the lower house of the parliament voted on the Act, asserting that he always stood by party policies.
“I was with Imran Khan yesterday, I am with Imran Khan today and I will stand with Imran until I die,” the MNA said.
‘Dark day in democratic history’
Separately, former Sindh High Court Bar Association president Salahuddin Ahmed shared a statement from the Karachi Bar Association strongly condemning the amendment’s passage in a “non-transparent and haste manner without any debate” as a “dark day in the democratic history” of the country.
It demanded that there was “no justifiable reason to deny the appointment of Justice Mansoor Ali Shah” as the next chief justice and called for his nomination and notification to the post.
It expressed concern about clauses regarding the appointment of judges to the constitutional benches and the constitution of the said benches through a “politically dominated” JCP.
“We see these provisions as a grave threat to the independence of the judiciary and a subversion of access to justice for all citizens.
Furthermore, we gravely apprehend that the present Chief Justice of Pakistan, Qazi Feez Isa, may facilitate the appointment of executive-minded judges to the constitutional benches of the Supreme Court. Therefore, we demand that, as the chief justice is retiring in just four days, he should play no role in the JCP regarding the appointment of judges to the constitutional benches of the Supreme Court.“
The association said it would continue to closely monitor the situation and stood ready to offer legal assistance to protect the independence of the judiciary and the rights of citizens. “We urge the relevant authorities to play their role towards safeguard the judicial system and restore trust in its processes,” it concluded.
Senate, NA votes
The bill, tabled by Law Minister Azam Nazeer Tarar was approved by the Senate with 65 votes — one more than required for a two-thirds majority.
These included 23 votes from the PPP, 19 from the PML-N, and five from the Jamiat Ulema-i-Islam-Fazl (JUI-F), as well as two from Balochistan National Party-Mengal (BNP-M) senators Muhammad Qasim and Naseema Ehsan, who voted against party lines.
Four and three senators of coalition partners Balochistan Awami Party (BAP) and the Muttahida Qaumi Movement-Pakistan (MQM-P), respectively, also voted for the bill. They were joined by three senators from the Awami National Party (ANP), one National Party and PML-Q senator each, and four independent senators — namely ex-caretaker PM Anwaarul Haq Kakar, Interior Minister Mohsin Naqvi, Faisal Vawda, and Abdul Qadir.
In the National Assembly, where the government required 224 votes to pass the bill, the amendment was voted for by 225 members. Twelve members from the PTI and the Sunni-Ittehad Council (SIC) opposed it, and walked out of the NA during the voting.
While the ruling coalition parties contributed 211 votes, eight votes came from the JUI-F and six from independent and PTI-backed candidates.
The PTI-backed independent members included Usman Ali, Aurangzeb Khichi, Mubarak Zeb, and Zahoor Qureshi, who voted in favour of the bill along with PML-Q’s Chaudhry Ilyas.