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Twenty-sixth Amendment to the Constitution of Pakistan

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Constitution (Twenty-sixth Amendment) Act, 2024
Parliament of Pakistan
Passed bySenate of Pakistan
PassedIn Senate of Pakistan: 20 October 2024
Passed byNational Assembly of Pakistan
PassedIn National Assembly of Pakistan: 21 October 2024[a]
Assented to byPresident Asif Zardari
Assented toAssented granted on 21 October 2024
Legislative history
First chamber: Senate of Pakistan
Bill titleThe Constitution (Twenty-sixth Amendment) Bill, 2024
Introduced byAzam Nazir Tarar (law minister)
Committee responsibleSpecial Parliamentary Committee, NA
Committee of the whole18 October 2024
Status: In force

The Twenty-Sixth Amendment to the Constitution of Pakistan, known officially as the Constitution (Twenty-sixth Amendment) Act, 2024, is an amendment to the Constitution of Pakistan passed by Parliament in a 'marathon session' between 20–21 October, 2024.[1] Coming into force with Presidential assent the same day.[2] The amendment contains 27 clauses, which effect change in judicial, parliamentary and executive frameworks: modifying aspects of judicial appointments, judicial powers, and adjusting legal procedures.[3] These include the removal of the controversial[4] suo motu prerogative of the Supreme Court, the capping the Chief Justice of Pakistan's (CJP) tenure to three-years, the reconstitution the Judicial Commission of Pakistan (JCP) to sit on judicial appointments, the formation of a separate constitutional bench in the Supreme Court, the limiting of the ability of courts to question the recommendations from Cabinet to the President or Prime Minister, the increasing of Parliamentary oversight, and the establishment of a 12-member Special Committee in Parliament with proportional representation to nominate the CJP (with two-thirds majority in the committee) from the three most-senior judges in the court.[5][6][7]

The amendment introduces Article 9A, which declares "[e]very person shall be entitled to a clean, healthy and sustainable environment," as a fundamental right. The package also includes abolishment of Riba "as far as practicable, by the 1st of January, 2028". It also the modified procedures for suo motu actions previously held by Supreme and High courts are instead placed in the hands of a judicial committee under the Practice and Procedure Act.[3] Under the amendment, the Chief Election Commissioner of Pakistan remains in office until the appointment of a replacement is notified. In Article 111, provincial Advocate Generals and counsel are permitted to partake in legal discussions in their respective Provincial Assemblies. The Special Parliamentary Committee responsible for the nomination of the Chief Justice is to hold its meetings in an in-camera sitting. The JCP is given the authority to "review" the performance of Federal Shariat Court (FSC) and High Court judges, in addition to appointment prerogatives.[3][8]

The Constitutional package was presented by the Pakistan Muslim League (N) (PML-N) and attracted support from other parties; including the Pakistan People's Party, with its chairman Bilawal Bhutto Zardari, and the Pakistan Tehreek-e-Insaf, with its chief Gohar Ali Khan, who expressed their agreement with the draft, citing previous consensus with Jamiat Ulema-e-Islam (F) leader Maulana Fazlur Rehman.[3] During parliamentary proceedings, the amendment was supported by Istehkam-e-Pakistan Party (IPP), Awami National Party (ANP), and Muttahida Qaumi Movement – Pakistan (MQM-P) parties, together with various independents and "others".[9] During voting, members of PTI walked out,[10] party leadership had previously declared the party's intent to boycott voting.[11] On October 20, the amendment bill was approved by the Federal Cabinet and passed through the Senate by 65 to 4 votes.[12] During wee hours of 21 October, National Assembly of Pakistan passed the amendment by 225 to 12 votes.[13]

Akhtar Mengal, leader of the Balochistan National Party (BNP) alleged that two of his party's senators had been abducted together with their families.[14] Leaders from PTI and JUIF claimed the government was pursuing "coercive tactics" to pass the amendments, including the kidnapping of kidnapping of MNAs.[15] Asad Qaiser claimed that party members were being offered Rs. 1-3 billion in bribes, while Omar Ayub Khan claimed "several PTI members and their family members were being intimidated and implicated in fabricated cases" to support the package. Attaullah Tarar claimed it was a "false narrative" and that "PTI had 'kidnapped its members itself'", holding them in KPK. PPP's Ali Musa Gilani and Agha Rafiullah "called for investigations" into the allegations.[16] Prior to the parliamentary session, PTI "lost contact with 12 of its lawmakers", with party leaders concerned some would defect.[17] The International Commission of Jurists (ICJ) stated the package was a "blow to judicial independence, the rule of law, and human rights protection".[18] Members of the legal community interviewed by the Express Tribune and Dawn criticised it for an "assault on judicial independence" and the "biggest-reversal" of judicial independence in 3 decades.[19][20][21]

Following the passage of the 26th Amendment, the Pakistan Stock Exchange (PSX)'s benchmark KSE-100 rose 711 points,[22] Bloomberg stated the amendment was "seen as a major boost to the government faced with economic challenges and a barrage of protests." With Marva Khan stating it “essentially signifies a stronger coalition government going forward," with power over judicial appointments. Bilawal Bhutto claimed that prior the judiciary had "undermined democracy and strengthened military rulers."[23]

Timeline

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On 18 October 2024, a proposed draft of the constitutional amendment was approved in the parliamentary special committee.[24]

On 19 October it was reported that the draft had been finalised but was debated or voted upon by the National Assembly of Pakistan.[3]

On 20 October 2024, the Cabinet approved the bill during a meeting chaired by Prime Minister Shehbaz Sharif.[25]

Later in the day, the bill was introduced in the Senate of Pakistan by the Minister for Law and Justice Azam Nazeer Tarar.[26] The senate then voted 65-4 to approve the bill, which had 22 clauses, with the required two-thirds majority.[27][28]

On 21 October 2024, the bill that had 27 clauses after having incorporated the suggestions made by the Senate, was passed by the National Assembly of Pakistan by a two-thirds majority with the votes of 225 members.[29][28]

The same day, the President Asif Ali Zardari gave his assent on the newly enacted law. Subsequently, the Act with 27 clauses was published in the Gazette of Pakistan.[28]

Articles of amendment

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All articles of the Amendment Act passed unanimous in the Senate, with the exception of Clause 2, with four dissenting votes.[30][31][31]

Amended/Inserted Clauses Indented

  • Clause 2 (Insertion of Article 9A [clean and healthy environment])
    • Clause 2A (Amendment of Article 38 [Elimination of Riba before January 2028])[32]
  • Clause 3 (Amendment to Article 48 [president to act on advice])
  • Clause 4 (Amendment to Article 81 [expenditure charged upon Federal Consolidated Fund])
  • Clause 5 (Amendment to Article 111 [right to speak in Provincial Assembly])
    • Clause 6 (Amendment to Article 175A [Most senior judge of the Constitutional Bench])
  • Clause 7 (Amendment to Article 177 [appointment of Supreme Court Judges])
  • Clause 8 (Amendment to Article 179 [retiring age])
  • Clause 9 (Amendment to Article 184 [Original Jurisdiction of Supreme Court])
  • Clause 10 (Amendment to Article 185 [Appellate jurisdiction of Supreme Court])
  • Clause 11 (Amendment to Article 186A [power of Supreme Court to transfer cases])
  • Clause 12 (Amendment to Article 187 [issue and execution of processes of Supreme Court])
    • Clause 13 (Insertion of Article 191A [Constitutional Benches of the Supreme Court])
  • Clause 14 (Amendment to Article 193 [Appointment of High Court Judges])
  • Clause 15 (Amendment to Article 199 [Jurisdiction of High Court]) in favour: 65; against: 0
    • Clause 16 (Insertion of Article 202A [Constitutional Benches of High Courts])
    • Clause 16A (Amendment to Article 203C [The Federal Shariat Court])
    • Clause 16B (Amendment to Article 203D [Powers, jurisdiction and functions of the Court])
  • Clause 17 (Amendment to Article 208 [Officers and servants of Courts])
  • Clause 18 (Substitution of Article 209 [Supreme Judicial Council)
  • Clause 19 (Amendment to Article 215 [Term of office of Commissioner])
    • Clause 19A (Amendment to Article 229 [Reference to Islamic Council])
    • Clause 19B (Amendment to Article 230 [Functions of the Islamic Council])
  • Clause 20 (Amendment to Article 255 [Oath of Office])
  • Clause 21 (Amendment to Article 259 [Awards])
  • Clause 22 [Amendment to the Fourth Schedule of the Constitution]

Criticism

[edit]

The amendment was criticized by five interviewed lawyers/barristers in Dawn, calling it a "blow to the constitutional order", "politicising the judiciary", and "emasculating the judiciary". However, one of the lawyers acknowledged that the current draft was "more workable" compared to earlier versions, though concerns still remained which required "redressal".[20] PTI alleged that seven of its lawmakers were "abducted" and claimed that the government was trying to pass the amendment "at gunpoint."[30]

The amendment has also been criticised for "incongruities or jurisprudential conundrums" concerning the division of the Supreme Court's with the addition of the Constitutional Bench.[33]

See Also

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References

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  1. ^ NA proceedings began in the later hours of the 20th and concluded in the opening hours of the 21st
  1. ^ "Marathon session ends with NA passing 26th Amendment Bill during predawn hours". www.geo.tv. Retrieved 2024-10-21.
  2. ^ "President Asif Ali Zardari gives assent to 26th Constitutional Amendment". Brecorder. 2024-10-21. Retrieved 2024-10-21.
  3. ^ a b c d e Naveed Akbar (19 October 2024). "Full text: Draft of 26th constitutional amendment approved in committee". Aaj TV. Retrieved 20 October 2024.
  4. ^ Ausaf, Ahmad Maudood (2024-09-06). "Suo motu — a distorted instrument rendered unrecognisable in Pakistan". DAWN.COM. Retrieved 2024-10-21.
  5. ^ Dawn.com (2024-10-20). "What is the 26th Constitutional Amendment?". DAWN.COM. Retrieved 2024-10-21.
  6. ^ "The Constitutional Amendment Is About Power Not The Independence Of The Judiciary". The Friday Times. 2024-10-21. Retrieved 2024-10-21.
  7. ^ "Constitutionalising Likeminded Benches Et Al!". The Friday Times. 2024-10-21. Retrieved 2024-10-21.
  8. ^ "بالآخر ترامیم پر حکومت، اتحادی کامیاب، چیف جسٹس کا انتخاب 3سینئر ججز میں سے ہوگا، وزیراعظم پارلیمانی کمیٹی کی سفارش پر نام صدر مملکت کو بھیجیں گے، یکم جنوری 2028 تک سود کا مکمل خاتمہ". jang.com.pk. Retrieved 2024-10-21.
  9. ^ "Chief Justice of Pakistan's selection process revamped under 26th Constitutional Amendment". The Express Tribune. 2024-10-21. Retrieved 2024-10-21.
  10. ^ "صدر کے دستخط کے بعد 26 ویں آئینی ترمیم نافذ، چیف جسٹس کے تقرر کا طریقہ کار سامنے آ گیا". jang.com.pk. Retrieved 2024-10-21.
  11. ^ "PTI 'decides to boycott' voting on 'controversial' tweaks to Constitution". www.geo.tv. Retrieved 2024-10-21.
  12. ^ "سینیٹ میں 26ویں آئینی ترمیم 2 تہائی اکثریت سے منظور کرلی گئی". jang.com.pk. Retrieved 2024-10-20.
  13. ^ "چھبیسویں آئینی ترمیم کی منظوری ، قومی اسمبلی میں کن اپوزیشن اراکین نے ترمیم کے حق میں ووٹ دیا، تفصیلات سب نیوز پر". Sub News. 21 October 2024. Retrieved 21 October 2024.
  14. ^ "Akhtar Mengal claims senators were abducted, refuses to support constitutional amendments". The Express Tribune. 2024-10-19. Retrieved 2024-10-21.
  15. ^ "Opposition slams coercive tactics to seek votes". The Express Tribune. 2024-10-19. Retrieved 2024-10-21.
  16. ^ Khan, Amir Wasim | Iftikhar A. (2024-10-18). "Opposition outraged by 'arm-twisting' over constitutional tweaks". DAWN.COM. Retrieved 2024-10-21.
  17. ^ "PTI braces for defection concerns, loses contact with 12 lawmakers as key constitutional vote looms". 2024-10-20. Retrieved 2024-10-21.
  18. ^ "President Asif Ali Zardari gives assent to 26th Constitutional Amendment". Brecorder. 2024-10-21. Retrieved 2024-10-21.
  19. ^ Malik, Hasnaat (2024-10-21). "Experts warn judicial independence on the chopping block". The Express Tribune. Retrieved 2024-10-21.
  20. ^ a b Dawn.com (2024-10-20). "Judicial capture: Lawyers react to 'diluted' 26th Constitutional Amendment Bill". DAWN.COM. Retrieved 2024-10-20.
  21. ^ "Pakistan Parliament passes constitutional amendment bill capping chief justice's term". Indian express. 21 October 2024.
  22. ^ "26 ویں آئینی ترمیم منظور ہونے کے بعد آج پاکستان اسٹاک ایکسچینج میں زبردست تیزی". Nawaiwaqt. 2024-10-21. Retrieved 2024-10-21.
  23. ^ "Pakistan Lawmakers Change Constitution to Strengthen Influence". Bloomberg.com. 2024-10-21. Retrieved 2024-10-21.
  24. ^ Akbar, Naveed (18 October 2024). "Full text: Draft of 26th constitutional amendment approved in committee". Aaj English TV.
  25. ^ "Federal cabinet has approved the 26th constitutional amendment". The Express Tribune. 20 October 2024.
  26. ^ Guramani, Nadir (20 October 2024). "Senate passes 26th constitutional amendment bill". DAWN.
  27. ^ "Senate passes 26th Amendment Bill 2024, capping CJP's tenure at three years". www.geo.tv. October 20, 2024.
  28. ^ a b c Guramani, Nadir (21 October 2024). "ICJ derides 'blow to judicial independence' as 26th Constitutional Amendment becomes law". DAWN.
  29. ^ "26th Constitutional Amendment awaits presidential assent after sailing through NA in late-night session". DAWN. 20 October 2024.
  30. ^ a b Dawn.com, Nadir Guramani | (2024-10-20). "NA session underway to pass 26th constitutional amendment bill after Senate approval". DAWN.COM. Retrieved 2024-10-20.
  31. ^ a b Recorder, BR (2024-10-20). "NA session resumes to pass 26th constitutional amendment bill after Senate approval". Business Recorder. Retrieved 2024-10-20.
  32. ^ Dawn.com, Nadir Guramani | (2024-10-20). "NA session underway to pass 26th constitutional amendment bill after Senate approval". DAWN.COM. Retrieved 2024-10-20.
  33. ^ "Constitutionalising Likeminded Benches Et Al!". The Friday Times. 2024-10-21. Retrieved 2024-10-21.
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