ISLAMABAD: The mystery surrounding the much-hyped yet highly controversial constitutional package for superior judiciary was finally unearthed on Sunday as the Senate hurriedly passed the 26th Constitutional Amendment from both the houses in an unceremonious session held on a weekly holiday.
After the federal cabinet chaired by Prime Minister Shehbaz Sharif approved the disputed piece of legislation, it was hastily laid in Senate by Law Minister Azam Nazeer Tarar, where it was passed with two-thirds majority – 65-4 votes.
All the parties barring Pakistan Tehreek-e-Insaf (PTI), Majlis-e-Wahdatul Muslimeen (MWM), supported the bill and voted for it. Barrister Ali Zafar, Hamid Khan, Aon Abbas Buppi of PTI and Allama Raja Nasir Abbas of MWM categorically opposed the bill.
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Shibli Faraz, the opposition leader in Senate, was conspicuous by his absence in an all-important session. The two PTI senators Dr Zarqa Taimur, and Faisal Saleem who were reportedly underground, have been accused by PTI leadership of “betrayal” with Imran Khan under the pretext of being abducted by the sleuths of powerful intelligence agencies. Likewise, two senators of Balochistan National Party-Mengal (BNP-M) Muhammad Qasim and Nasima Ehsan, also voted for the bill despite allegations levelled by party chief Akhtar Mengal that they were abducted by spy agencies.
“Sixty-five members are in favour of the motion regarding the passage of the bill, and four members are against it. So, the motion is carried out by the votes of not less than two-thirds of the total membership of the Senate, and consequently, the bill stands passed,” declared Gilani.
The following is the break-up of the parties which voted for the bill. BNP-M 2, ANP 3, JUI-F 5, BAP 4, PML-Q 1, MQM-P 3, PPP 24, PML-N 19 and Independents 4.
According to the bill passed by Senate, the parliamentary committee will nominate one of the three most senior judges of the Supreme Court as chief justice of Pakistan. The chief justice of Pakistan will be appointed by a 12-member special parliamentary committee.
The 12-member parliamentary committee would require a two-thirds majority to appoint the CJP. The bill also allows for the establishment of constitutional benches at the provincial level.
The Judicial Commission will be reconstituted for the appointment of Supreme Court judges, with the Chief Justice serving as its head. The commission will include four most senior Supreme Court judges, the federal law minister, the attorney general and a representative from Pakistan Bar Council (PBC). Besides, the Judicial Commission will also have two members each from National Assembly and 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 Senate.
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 most judge will be considered for the top slot. The term for the chief justice of Pakistan will be three years with a proposed upper age limit of 65 years.
The 12-member parliamentary committee will comprise eight members from National Assembly and four from Senate, ensuring adequate representation from all parliamentary parties according to their strengths. In the event of the dissolution of National Assembly, a special committee of four senators will oversee the appointment process.
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 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 included 26 amendments. One notable proposal is 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 amendment to Article 48 said that advice sent to the president by the prime minister and cabinet cannot be challenged in any court.
Additionally, a Constitutional Division within the Supreme Court 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.
The 26th Constitutional Amendment Bill, 2024, also established a deadline of January 1, 2028, for the end of the practice of Riba (interest-based banking) in the country.
The clause was added to the draft amendments at the suggestion of Senator Kamran Murtaza of Jamiat Ulema-e-Islam-Fazl (JUI-F).
The house approved the amendment in clause (f) of Article 38 of the Constitution, which pertains to the promotion of social and economic well-being.
The current clause states that “eliminate Riba as early as possible,” and the government replaced this with “as far as practicable, by the 1st of January, 2028.”
Copyright Business Recorder, 2024
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