Senate approves 26th constitutional amendment with two-thirds majority

ISLAMABAD: Pakistan’s Senate on Sunday night passed the 26th Constitutional Amendment with a two-thirds majority, approving all 22 clauses during a clause by clause voting.

Federal Law Minister Azam Nazeer Tarar presented the 26th Constitutional Amendment in the Upper House and then moved the motion for a vote, which was approved by a two-thirds majority of the House, with 65 members voting in favour and four against.

Sixty-five members voted in favour of the amendment, including 58 from the ruling coalition, five from Jamiat Ulema-e-Islam-Fazl, and two senators from Balochistan National Party (BNP) Mengal.

Members of Pakistan Tehreek-e-Insaf (PTI) and Majlis Wahdat-e-Muslimeen (MWM) did not participate in the voting process and left the hall to the lobbies.

The Senate initiated the clause-by-clause approval process of the 26th Constitutional Amendment Bill after Chairman Yusuf Raza Gilani ordered the doors of the chamber to be closed. The first clause was approved with a two-thirds majority, as 65 members voted in favour, while four opposed.

Federal Law Minister Azam Nazeer Tarar presented the amendment in the house, stating, “I want to present the 26th constitutional amendment and bring the constitutional amendment bill under consideration in the supplementary agenda.”

He requested the Senate chairman to introduce the amendments as part of the supplementary agenda.

The law minister explained that discussions on the constitutional amendment had taken place, leading to the formation of a committee that included all parliamentary parties, with input from the opposition as well. He also mentioned that the draft had been agreed upon with coalition parties after consultations with the JUI-F.

Following the voting, the constitutional amendment bill was approved by a two-thirds majority.

“Sixty-five members have voted in favour of the bill, while five members have voted against it,” Senate Chairman Gilani announced.

Earlier, parliamentary leaders of various parties expressed their views in the Senate. The law minister presented the motion for voting on the constitutional amendments, which was approved by a majority vote.

Senator Kamran Murtaza of Jamiat Ulema-e-Islam-Fazl proposed further amendments, which were supported by Law Minister Azam Nazeer Tarar and passed with majority approval.

The JUI-F also proposed an amendment to Article 38, Paragraph F, aiming for the prompt elimination of the interest-based financial system. With the government’s backing, the amendment to Article 38 was approved by the Senate, with 65 members voting in favour and none opposing.

Another amendment to Article 48 was presented, stating that no institution, tribunal, or authority can act on any advice sent by the Prime Minister or Cabinet to the President. The Senate passed this proposed amendment to Article 48 by a majority vote.

The Senate also approved an amendment to Article 81, which included the Judicial Commission of Pakistan and the Supreme Judicial Council. An amendment to Article 175-A concerning the judiciary was approved with a two-thirds majority, establishing a commission for the appointment of Supreme Court and High Court judges.

The 13-member commission will be headed by the Chief Justice of Pakistan, with four senior Supreme Court judges, the Federal Law Minister, the Attorney General, a senior lawyer from the Pakistan Bar Council, two members of the National Assembly, and two senators—one each from the government and opposition—who will be nominated by the leaders of the National Assembly and Senate.

Under the amendment, a special 12-member parliamentary committee will be formed under Article 175-A(3A), comprising eight members from the National Assembly and four from the Senate. If the National Assembly is dissolved, all members of the committee will be from the Senate.

The special parliamentary committee will have proportional representation from all political parties, and parliamentary leaders will be authorized to nominate members. The Speaker of the National Assembly will issue the notification for the committee.

The Chief Justice will be required to provide a seniority list 14 days before retirement, and the Chief Justice will send the names of the three most senior judges to the parliamentary committee for consideration. The committee will then select one nominee to be forwarded to the Prime Minister, who will send the final recommendation to the President for appointment.

If the nominated judges decline, the parliamentary committee will consider the next senior judge. The committee will review the nominations until the Chief Justice is appointed.

Under the newly approved amendment, the Chief Justice will send the names to the parliamentary committee three days before retirement, and the committee’s meetings will be held in-camera. If the National Assembly is dissolved, two senators will be included. Article 68 will not apply to the proceedings of the special parliamentary committee concerning the Chief Justice’s appointment.

The amendment also grants the Supreme Judicial Commission the authority to annually review the performance of High Court judges. If a judge’s performance is deemed unsatisfactory, the commission will provide a timeframe for improvement. If the performance remains unsatisfactory, the report will be sent to the Supreme Judicial Council.

The Supreme Judicial Council will address cases of unsatisfactory performance or misconduct of judges from both the Supreme Court and High Courts. Judges may be removed based on the council’s findings of physical or mental incapacity, misconduct, or failure to perform duties. The council is required to complete inquiries within six months without delay.

The President of Pakistan will have the authority to remove judges based on the council’s report. The commission’s meetings can be convened upon the request of one-third of its members, and the chairman of the commission is required to hold a meeting within 15 days of receiving such a request.

The Senate has approved amendments to Article 177, barring individuals with dual nationality from being appointed as Supreme Court judges. Under this amendment, a candidate must have served as a High Court judge for at least five years to be eligible for appointment to the Supreme Court. Additionally, any lawyer aspiring to become a Supreme Court judge must have a minimum of 15 years of legal practice.

Another significant amendment to Article 179, passed with a two-thirds majority, sets the term for the Chief Justice of Pakistan at three years. The amendment also stipulates that the Chief Justice will retire at the age of 65.

The Senate also passed an amendment to Article 184, which eliminates the Supreme Court’s suo moto power. Under the revised Article 184, the Supreme Court can no longer issue decisions or directives beyond the scope of a petition filed before it.

Similarly, an amendment to Article 186-A was approved, increasing the fee for filing an appeal against a high court decision in the Supreme Court from Rs50,000 to Rs1 million.

Earlier, Pakistan’s Senate on Sunday evening started deliberating on the 26th constitutional amendment bill, which was earlier passed by the federal cabinet.

Law Minister Azam Nazeer Tarar presented the draft, which proposes significant changes, including limiting the chief justice’s term and curbing the Supreme Court’s suo motu powers. Senate Chairman Yusuf Raza Gilani is chairing the session of the Upper House of the Parliament.

Jamiat-e-Ulema Islam-Fazl senators participated in the legislation process a amidst participation of the Pakistan Tehreek-e-Insaf (PTI) that said that it will vote on the constitutional amendment in both the National Assembly and Senate.

The Upper House of the Parliament started approving the bill clause-by-clause as the government has garnered the required numbers to pass the legislation with a two-thirds majority.

Earlier, Law Minister Azam Nazeer Tarar said that extensive consultations were held with all political parties, including the opposition, regarding the constitutional amendment.

“For transparency in the appointment of judges, decisions will now be made by the Judicial Commission through a majority vote,” said Tarar.

He said that Senator Kamran Murtaza introduced a few amendments to the agreed-upon constitutional bill,” he said adding that the Judicial Commission of Pakistan will consist of eight members, chaired by the Chief Justice. The Judicial Commission will include four senior judges and four members of parliament.”

The law minister said that efforts have been made to restore the process of appointing judges to the higher judiciary in line with its original spirit, ensuring greater transparency in the selection process.

In his speech, Law Minister Tarar said that a committee was formed on the instructions of the Speaker to review the constitutional amendment bill. The committee has thoroughly examined the bill, and it has now been included in the supplementary agenda for consideration.

He noted that the Parliamentary Committee was originally empowered to block any nominations, but a petition was filed in the Supreme Court regarding this authority. As a result, the Nineteenth Amendment was quickly passed, altering the composition of the commission. During this reformation, the members leaned toward a particular institution.

The Law Minister also mentioned that bar councils had expressed concerns over the process of appointing Supreme Court judges. In response to the Supreme Court Bar’s demands, an amendment to Article 175(3) of the Constitution was proposed.

Senate Chairman Gilana asked PTI’s Parliamentary Leader Barrister Ali Zafar to present his party’s perspective in the parliament.”

Tarar said: “The nomination of judges will now be done by the Judicial Commission. To ensure transparency in the appointment of judges, all decisions will be made collectively within the commission. Justice is often delayed, and cases drag on for years. The Judicial Commission will also have the authority to assess the performance of judges. Judges who are not performing well or whose work is unsatisfactory will be reported to the commission.

He said that “the issue originally surfaced with the proposal of establishing the constitutional court, and it was first raised by Benazir Bhutto and Nawaz Sharif. There has been propaganda claiming that these changes are being made for the current Chief Justice Qazi Faez Isa, but the chief justice himself has made it clear that he has no personal interest in this matter.”

Senator Ali Zafar raises concerns over serious errors in amendment draft

PTI Senator Barrister Ali Zafar said, “I cannot confidently speak about the draft that has been presented. However, it seems that many people in the house have not even read the constitutional amendment draft. If I were to ask, perhaps many would not be able to respond.”

He further said, “I would like to point out that even in what was presented, there are serious errors. Such mistakes, if not corrected, could cause significant harm. You were supposed to establish a constitutional court, but instead, you have labeled it a constitutional bench.”

Pakistan People’s Party (PPP) leader Senator Sherry Rehman said that Bilawal Bhutto has repeatedly explained that when the parliament demands its rights, it is accused of pursuing political objectives. “We proudly engage in politics, and many people come forward after making sacrifices,” she said.

She added, “We do not have the right to legislate to ensure the parliament’s authority, but we do not play tunes in front of black or white snakes—we end them right there.”

Sherry Rehman further stated that nowhere in the world do judges appoint themselves; instead, judicial advisory committees are in place.

JUI-F Senator Maulana Ataur Rehman, speaking on the matter, said, “If this country has been saved, it is because of the Constitution, and the foundation of the parliament also rests on the same Constitution. No one should insert anything into it that could become a threat in the future. The establishment has repeatedly tried to insert something into the Constitution that would jeopardize the country’s future security.”

He added, “Jamiat Ulema-e-Islam has always had the same concerns. We have thoroughly studied these amendments and the Constitution. If our leadership has compared it to a snake, it is because there was a real danger. I also urge others who have given suggestions on these amendments, including PTI colleagues, that we are working for the country’s betterment. Even if not 100 per cent, support us by at least 80 per cent.”

The amendment proposes setting the chief justice’s tenure at three years and allowing the prime minister to appoint the next chief justice from the three most senior judges of the Supreme Court.

“The chief justice of Pakistan shall be appointed on the recommendation of a special parliamentary committee from among the three most senior judges of the Supreme Court,” the amendment states. The committee will forward its nominee to the prime minister, who will then submit the name to the president for formal appointment.

The special parliamentary committee will consist of 12 members — eight from the National Assembly and four from the Senate. Party representation will be proportional to their strength in parliament, with members nominated by their respective parliamentary leaders.

The draft was earlier approved by a parliamentary committee headed by Pakistan People’s Party MNA Syed Khurshid Shah. The federal cabinet, chaired by Prime Minister Shehbaz Sharif, also endorsed the bill after a detailed briefing by the law minister.