26th Amendment Bill: Is Pakistan trying to clip the wings of its Judiciary?

After months of political negotiations and tussle, Pakistan passed the 26th Constitutional Amendment Bill on Monday morning. The bill which proposed several changes in the functioning of the country’s judiciary, received approval from both houses of the Pakistani parliament.

According to Pakistani news outlet Dawn, the Bill initially received the green light from the Senate with a two-thirds majority. It was later presented in the National Assembly during a late night session which began at 11:36 pm (local time) and extended well past midnight, finally passing at 5 am. With this, the Constitution (Twenty-Sixth Amendment) Act, 2024 will now be sent to the president for assent, as per Article 75 of Pakistan’s constitution.

The Bill required 224 votes in the NA to get passed. As voting commenced under the chairmanship of NA Speaker Ayaz Sadiq, 225 votes were in favour of the motion, while 12 members from the PTI and the Sunni-Ittehad Council (SIC) opposed it. Interestingly, when the first clause out of the 27 clauses was read in the parliament, former Prime Minister Imran Khan’s PTI staged a walkout.

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The National Assembly in its session today passed, "The Constitution (Twenty-sixth Amendment) Bill, 2024".

225 Members voted in favour of the Bill while 12 Members voted against it.

The motion to pass the Bill was introduced by Minister for Law and Justice and Parliamentary… pic.twitter.com/1IGEf92HWE

— National Assembly 🇵🇰 (@NAofPakistan) October 21, 2024

While commenting on the bill, Prime Minister Shehbaz Sharif called it the victory of the country’s parliament. “Today, it’s been decided that Parliament reigns supreme,” he said, as 225 members, including coalition partners and independent lawmakers, voted in favour of the bill. Meanwhile, PTI refrained from voting, insisting that Khan called for more consultation on the bill.

“The party will abstain from voting and present its stance while sitting in the parliament," Barrister Gohar said on Sunday, before the voting. He noted that the PTI founder had instructed them to have “more consultations since this legislation is so serious.“Given that we have no time for further consultations, and how the bill was processed and how our parliamentarians were harassed, the PTI cannot vote for this bill,” the new PTI chairman furthered.

So what is the Bill about? Is it undermining the power of the country’s judiciary?

What is the 26th Constitutional Amendment Act? 

The 26th Constitutional Amendment Act also known as the Constitutional Package introduces a host of changes in the functioning of the country’s judiciary, including 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.

In the past, the Pakistan Muslim League-Nawaz (PML-N) tried to bulldoze the amendment. However, parties like JUI-F and PTI called for more consultation over the matter. One of the major contentious clauses was the proposed Federal Constitutional Court, which the PTI opposed and on the request of the JUI-F, it was replaced with a constitutional bench.

While the Bill has 27 clauses, here are some of the key amendments which made critics wonder if the Act will undermine the power of the country’s judiciary.

• CJP’s term limit, appointment 

The Act introduced maximum amendments to Article 175A which deals with the process of appointment of judges to the Supreme Court, high courts and the Federal Shariat Court (FSC).

One of the clauses limits the term of the Chief Justice of Pakistan to three years. Prior to this, the CJP could stay in office until they turn 65. With the new act, the CJP’s term “shall be three years or unless he sooner resigns or attains the age of 65 years or is removed from his office in accordance with the Constitution, whichever is earlier”.

Changes have also been introduced to the appointment of the CJP. Under the amendments to clause 3 of Article 175A, instead of the president appointing the “most senior judge of the Supreme Court” as the CJP, the top judge will now be “appointed on the recommendation of the Special Parliamentary Committee from amongst the three most senior” SC judges.

The committee will recommend the names to the prime minister who will then approach the president for the appointment. The clause made the whole process more complicated. Getting a parliamentary committee and PM involved in the process of selection instead of just picking the most senior justice can bring out the bias of the ruling regime.

What is the Special Parliamentary Committee?

New clause 3A, introduced by the legislation, talks about the Special Parliamentary Committee. The body will comprise of:

2. 8 members from the National Assembly

3. 4 Members of the Senate

“Provided that when the National Assembly stands dissolved, the total membership of the committee shall consist of the members from the Senate only mentioned in paragraph (ii) and the provisions of this Article shall, mutatis mutandis, apply,” the draft adds. Another new Clause 3B ensures that all parliamentary parties will have proportional representation in the committee based on their strength in the parliament.

• SC no longer will have suo moto powers

Another notable and highly contentious change introduced by the Supreme Court is the one made to Article 148 of the Pakistani constitution which takes away SC’s suo moto powers.

“Provided that the Supreme 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 this clause.” the clause reads.

Stressing the necessity of judicial reforms, Law Minister Azam Nazeer Tarar pointed out how the current CJP frequently issued suo moto notices. “Our courts sent elected prime ministers home,” he remarked. However, taking away the power prevents the apex court from immediately intervening in matters where they see a violation of rights.

Meanwhile, another tweak in Article 186A stated that the apex court can now transfer cases from one high court to another or to itself. The Joint Commission of Pakistan (JCP) will now have the power to monitor judges’ performance and report any concerns to the Supreme Judicial Council. The clause has the possibility of limiting the independence of both High Court and Supreme Court judges.

Beyond the Judiciary: Eradication of Riba

Apart from the changes introduced to the structure of the judiciary, the 26th Amendment Bill also stipulates that all forms of “riba” or interest must be eliminated before January 1, 2028. The move will likely promote the culture of Islamic banking in the country.

“In the Constitution, in Article 38, for paragraph (f), the following shall be substituted, namely: (f) eliminate riba completely before the first day of January, two thousand twenty-eight,” the Bill reads.

It is pertinent to note that back in 2022, Pakistan’s Federal Shariat Court (FSC) directed the government to eliminate all forms of interest by 2027 since Islam prohibits taking interests in all forms and manifestations.

Can the court strike the Bill down

With the parliament introducing significant judicial reforms, one of the main questions that arises is can the country’s Supreme Court can strike down the legislation. The answer to the question is not that simple.

The Bill has to be challenged in the court before it can intervene in the matter. The apex body won’t step in until and unless a petition is filled against the bill. Now this is where things get tricky. If the Bill gets challenged in the court, it would wound up to the same constitutional bench instituted by the parliament.

“If a citizen challenges the actions of the government or a law passed by parliament as unconstitutional, they will now have to plead their case before judges handpicked by that same government or parliament,” Former Sindh High Court Bar Association president Salahuddin Ahmed told The Express Tribune.