New Delhi: Pakistan’s federal cabinet finally convened Sunday to approve the draft of the 26th Constitutional Amendment, which aims to overhaul key aspects of the country’s judicial system, after the meeting was delayed multiple times amid a political tug-of-war.
The proposed amendments, which have been shrouded in controversy, together make up the ‘Constitutional Package’, and are expected to impact the power dynamics between the political executive and the judiciary.
The federal government was scheduled to review the package Saturday, but both parliamentary sessions faced delays and were adjourned before midnight.
Now, after the cabinet’s approval, the Senate and then the National Assembly are set to take up the bill for discussion and subsequent voting Sunday evening.
The government’s plan to introduce the constitutional amendment in the Senate Friday fell through after Jamiat Ulema-e-Islam-Fazl (JUI-F) chief Maulana Fazlur Rehman threatened to withdraw from negotiations, citing alleged harassment of lawmakers in the Opposition.
Pakistan Peoples Party’s Syed Khursheed Shah had initially claimed that a “unanimous” consensus had been reached, but party chairman Bilawal Bhutto Zardari later warned that he would push the amendments through with the support of the Pakistan Muslim League (N), if no broader consensus was achieved.
Rehman, who met with Pakistan Tehreek-e-Insaf’s leadership, reportedly said that he had received a positive response from Imran Khan on the amendments and expected PTI to give its formal reply Sunday.
However, PTI leader Gohar Khan said that the party would meet Rehman today, but PTI’s Barrister Ali Zafar clarified they would not vote for the amendment. PTI’s political committee also decided to boycott the vote, if the amendment was tabled Sunday.
ThePrint explains the key proposed amendments, the rationale behind them and the potential impact.
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The proposed package
The constitutional amendments were first introduced in September by the PPP-led coalition government, as changes that would ‘increase executive ingress in judicial appointments’. The amendments aim to curb the Supreme Court’s suo motu powers, fix the Chief Justice of Pakistan’s term at three years, and allow the prime minister to appoint the CJP from the three senior-most judges.
One of the proposed amendments, regarding the creation of a new federal constitution court subsuming the Pakistan Supreme Court, has reportedly been removed. The government succeeded in preventing the senior-most judge from automatically becoming the CJP, by introducing a special parliamentary panel to appoint the next one from the top three judges. This would block Justice Masoor Ali Shah from succeeding Chief Justice Qazi Faez Isa, who is set to retire on 25 October. The proposal to extend the judges’ retirement age from 65 to 68 was also dropped.
The package includes other provisions, such as increasing seats in Balochistan’s assembly and changes to the appointment process for military chiefs.
Here are some of the key proposed changes:
Appointment of the CJP: The chief justice will be appointed by a special parliamentary committee from the three senior-most Supreme Court judges. The committee will send the nominee to the prime minister, who will forward it to the president for appointment.
Special parliamentary panel for judicial appointments: The panel will be composed of 12 members—eight from the National Assembly and four from the Senate. Party representation will be proportional to their strength in parliament. The committee must make its nomination at least 14 days before the CJP’s retirement. For the first nomination after the 26th Amendment, it must be made three days before the CJP’s retirement. No decisions by the commission or committee will be invalidated due to a vacancy or member absence.
Powers of the parliamentary panel: The panel will be empowered to create rules, including procedures and criteria for assessing the fitness of judges. The CJP will no longer have the power to appoint a substitute for a high court chief justice’s unavailability. This responsibility will rest with the parliamentary commission.
Composition of commission to appoint judges (Article 175-A): Amendments suggest that the commission responsible for appointing judges to the Supreme Court, high courts and the Federal Shariat Court should have members with a minimum of 15 years of Supreme Court practice as a senior lawyer.
Presidential advice (Article 48): Changes to Article 48 of the Pakistan Constitution seek to prevent any court, tribunal or authority from inquiring into advice tendered to the president by the prime minister or the cabinet.
CJP’s term (Article 179): CJP’s term is set at three years, or until resignation, reaching age 65, or removal—whichever comes first. After the three-year term, the CJP will retire regardless of age.
Performance evaluations: The parliamentary commission will conduct annual performance reviews of high court judges. Those who fail to meet the standards will be given a set period to improve, after which their case will be referred to the Supreme Judicial Council.
Reduced suo motu jurisdiction for top court (Article 184): This will restrict the Supreme Court’s suo motu jurisdiction to only those applications filed under the relevant clause.
Constitutional benches: The Judicial Commission of Pakistan will create constitutional benches as needed, with equal representation from each province where possible. Only constitutional benches can exercise the Supreme Court’s original jurisdiction under Article 184, appellate jurisdiction under Article 185(3) (for constitutional cases) and advisory jurisdiction under Article 186.
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Political opposition to proposed amendment
The bill needs approval from both houses of parliament with a two-thirds majority for it to be engrained into the country’s law.
However, the present government does not have the required numbers to pass the amendment. It sought the support of its ally JUI-F, which refused to support the bill in the parliament, if the draft was not disclosed to them.
A special parliamentary committee, formed last month with representation from all parties, including the PTI, then discussed various proposals. On 11 October, PPP released its proposals, after which it reached a consensus with the JUI-F on a joint draft of the amendments.
Following this, the special parliamentary committee, chaired by Syed Khursheed Shah, approved a draft of constitutional amendments Friday. JUI-F’s Rehman, alongside PPP chief Bhutto-Zardari, announced Friday that that party would support the 26th constitutional amendment after PTI’s response and sought an extra day for deliberations.
Consensus was reached after the government agreed to remove parts of the amendment that were unacceptable to JUI-F. Bhutto-Zardari emphasised the need for the amendment to be passed with broad political consensus.
PTI, while nearing an agreement with JUI-F, delayed its decision, waiting for guidance from jailed chief Imran Khan. The party has alleged that its members were being offered as much as Rs 3 billion in exchange for supporting the amendments.
Allegations of lawmakers being coerced into supporting the amendment have been denied by the government, including claims of abductions of opposition MPs. A planned National Assembly session Saturday was adjourned before midnight, delaying the process further.
Why are numbers in the parliament important?
The Shahbaz Sharif-led administration has faced significant obstacles in securing the necessary votes for the amendments to pass. The government needs a two-thirds majority in both houses of parliament—at least 224 votes in the National Assembly and 64 in the Senate.
However, its current coalition has only 213 members in the Assembly and 52 in the Senate, leaving it short of the required numbers. To make up the deficit, the PPP-led government has been courting the JUI-F, which holds eight seats in the National Assembly and five in the Senate.
The bill has been described by political analysts as an attempt to dilute the independence of the judiciary, particularly by giving the executive more control over the appointment and tenure of judges.
On 17 September, a petition was filed in the Supreme Court challenging the proposed amendments as unconstitutional and a threat to judicial independence. It was later dismissed. Senior lawyers in Balochistan also protested against the proposed changes.
(Edited by Mannat Chugh)
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