Proposed draft of 26th amendment: Panel to nominate one of three senior most SC judges for CJP slot

ISLAMABAD: A new proposed draft of the Constitution (Twenty-sixth Amendment) Bill, 2024, approved by the special parliamentary committee, said that the parliamentary committee will nominate one of the three most senior judges of the Supreme Court for the slot of the chief justice.

The draft proposes an amendment to Article 175A, under which, the chief justice of Pakistan will be appointed by a special parliamentary committee.

According to the draft, the Judicial Commission will be reconstituted for the appointment of Supreme Court judges, with the Chief Justice serving as the head. The commission will include the four most senior Supreme Court judges, the Federal Law Minister, the Attorney General, and a representative from the Pakistan Bar Council.

The draft outlines that the Judicial Commission will also have two members each from the National Assembly and the Senate. One representative from the government and one from the opposition will be selected from both houses.

Additionally, the commission will include one woman or non-Muslim member, who must be eligible to contest for a technocrat seat in the Senate.

The draft further states that the prime minister will forward the name of the chief justice to the president based on the parliamentary committee’s recommendation. If a nominee is rejected, the next senior judge will be considered. The term for the chief justice of Pakistan will be three years, with a proposed upper age limit of 65 years.

According to the draft, the 12-member parliamentary committee will comprise eight members from the National Assembly and four from the Senate, ensuring adequate representation from all parliamentary parties according to their strengths. In the event of the dissolution of the National Assembly, a special committee of four senators will oversee the appointment process.

Under the proposal, the parliamentary committee will finalise the nomination of the new chief justice 14 days before the retirement of the incumbent. However, only for the first time after the implementation of the amendments, the appointment will be made three days before the current chief justice retires.

The draft also addresses Article 184(3), proposing that the Supreme Court should not issue any directive or declaration on its own. Under Article 186A, the Supreme Court will have the authority to transfer cases from one High Court to another, and the Judicial Commission will review the annual performance of High Court judges.

The proposed 26th draft includes 26 amendments. One notable proposal is the re-establishment of a constitution bench. The Judicial Commission will determine the composition and number of judges for these benches, which will, as far as possible, include equal representation from all provinces.

The constitution bench will have the authority to take suo motu notice under Article 184, while cases related to constitutional interpretation will fall under their jurisdiction according to Article 185.

The draft includes a proposed amendment to Article 48, ensuring that advice sent to the president by the prime minister and cabinet cannot be challenged in any court.

Additionally, the draft introduces the creation of a Constitutional Division within the Supreme Court, which will handle constitutional matters such as suo motu cases, constitutional appeals, and presidential references. A three-member bench from this division will hear and decide such cases, marking a departure from the existing practice where any Supreme Court judge could handle constitutional issues.

The Constitutional Division will ensure equal representation of all provinces, with its composition and number of judges being determined by the Judicial Commission.

Copyright Business Recorder, 2024