By Afshain Afzal

2. New Article 9A " Clean and healthy environment. Every person shall be entitled to a clean, healthy and sustainable environment."

Analysis.

(1)       Through insertion of new Article 9A every Pakistani has become entitled to a clean, healthy and sustainable environment as basic human rights. Pakistan being a developing country, it would be difficult for the civic authorities to sustain or satisfy the general public.

(2)       Taking benefit of the new Article authorities will be empowered to seal properties and premises. Although Article 24 Protection of Property Rights provides, “No person shall be deprived of his property save in accordance with the law. However, Article 24 (3) (a) provides, Nothing in this Article shall affect the validity of any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health. Similarly, Article 151 The Act of the Provincial Assembly which imposes any reasonable restriction in the interest of public health, public order, or morality, or for the purpose of protecting animals or plants from disease or …. shall not, if it is with the consent of the President, be invalid”.

3. Article 38, for paragraph (f) substituted by:-

"(f) Eliminate Riba completely before the first day of January, two thousand twenty-eight; and".  

Analysis:

(1)       The new amendment provides “eliminate Riba completely before the 1 January 2028”, whereas Article 38. f which has been substituted after amendment provided, “For the social and economic well being of people the state shall eliminate Riba as early as possible.” This means the state responsibility to eliminate Riba as early as possible has been delayed by three years, two months and eleven days.

(2)       The new amendment has officially based country’s economy on Riba or Interest-based economy for another more than three years. More so, the prefix “For the social and economic well being of people the state” has been removed which is real objective behind the elimination of Riba.

(3)       If we read amendment in Article 38, paragraph (f) with amendment of Article 230 clause (4), where it has been added, "Provided that the final report in any case shall be considered within twelve months after it has been laid". This means that The Islamic Council will submit final report within twelve months after it has been laid. This final report will be discussed in both the house and each provincial Assembly within six months of its receipt, and Parliament and the Assembly after considering the report enact laws within the period of two years. Hence in an ideal situation if approved, minimum period required to enact elimination of Riba and Islamic laws is three years and six months i.e. not before April 2028.

4. Amendment of Article 48 (4):-

“The question whether any, and if so what, advice was tendered to the President by the Cabinet, or the Prime Minister, shall not be inquired into in, or by, any court, tribunal or other authority".       

Analysis:

(1)       Substituted Article 48 (4) of the Constitution contained exact wordings except that it also exempted minister or minister of the state from an inquiry into in, or by, any court, tribunal or other authority but through the in the new amendment names of minister or minister of the state have been removed. In other words, now minister or minister of the state can be inquired into in, or by, any court, tribunal or other authority what advice Cabinet or Prime Minister tendered to the President. This new amendment will put pressure on ministers when Prime Minister is dismissed or Cabinet is dissolved or during emergency.

(2)       It may also be possible that there might be plans to form Cabinet without ministers, minister of the state or politically elected persons, who will not be accountable an inquired into by any court, tribunal or other authority.

5. Amendment of Article 81;-

Article 8 (b), for the words "Supreme Court", the expression "Supreme Court, the Judicial Commission of Pakistan, the Supreme Judicial Council" 

Analysis: The Amendment has been made to accommodate and regularize new appointments of persons other than Judges including ad hoc or retired persons in Supreme Court, the Judicial Commission of Pakistan, and Supreme Judicial Council.

Article 81 (d) insertion of a new paragraph:-

"(da) any sums required to organize and conduct elections to the National Assembly, Senate, Provincial Assemblies and the local governments; and"

Analysis:

(1)       The Amendment has been made to ensure that Federal Consolidated Fund is always available for the conduct of elections without approval in the Annual Budget or passage of separate bill from the Parliament. The Amendment is also violation of Article 81.

(2)       Under the Article 81, the expenditure charged upon the Federal Consolidated Fund is only confined to Federal matters including the remuneration payable to the President and other expenditures relating to his office, remuneration payable to Judges of the Supreme Court, Islamabad High Court, the Chief Election Commissioner, the Chairman and Deputy Chairmen, the Speaker and Deputy Speaker of National Assembly, the Auditor General and administrative expenditure including remunerations paid to officers and servants of the Supreme Court, the Islamabad High Court, the department of Auditor General, the office of Chief Election Commission and Election Commission and the Secretariats of Senate and National Assembly. Hence, new Amendment would is unjustified.

(3)       Article 81 (e) provide a space. “Any other sums declared by the Constitution or Act of Parliament to be so charged.” Through the 26th Amendment 2024, an attempt has been made to confuse regarding holding of elections including Local Bodies without proper allocations in the Annual Budget. As regard to Local Bodies election it is a provincial matter and do not fall under affairs of the Federation. Article 140 provides, “Each Province shall, by law, establish Local Government and devolve political, administrative and financial responsibility and authority to the elected representatives of the local government.”

6. Amendment of Article 111 of the Constitution after the expression "The Advocate-General", "and an Adviser appointed under clause (11) of Article 130" shall be inserted.

Analysis:

(1)       Article 111 and 130 deals with Provincial Assemblies. There is difference between Advocate-General and Advisor as an Advisor may be non-judicial.

(2)      Article 130 provides “There shall be a Cabinet of Ministers, with the Chief Minister at its head, to aid and advise the Governor in the exercise of his functions. Article 130 (11) provides that Chief Minister shall not appoint more than five Advisors but it is not for the Federal Government or Judiciary.

7. Amendment of Article 175A,-

Clause (1), after the expression "Shariat Court," the expression "and for performance evaluation of Judges of the High Courts," shall be inserted.

Analysis:

(1)       If beside appointments of Judges in the Supreme Court, High Court and Federal Shariat Court, the performance evaluation of the Judges of the High Courts is also the responsibility of the Judicial Commission of Pakistan it would require the members of Judicial Commission of Pakistan to be physically present in all the High Courts throughout Pakistan to personally evaluate performances of Judges.

(2)       The Amendment only allows the Judicial Commission of Pakistan performance evaluation of Judges of High Courts. In other words, the Commission will not be responsible for the performance evaluation of Judges of Supreme Court and Federal Shariat Court or others.

Clause (2) substituted by:

(2)       For appointment of Judges of the Supreme Court, the Commission shall consist of:-

(i) Chief Justice of Pakistan – Chairperson;

Analysis:

(1)       Before the amendment the Chief Justice of Pakistan was “Chairman” as per Article 175A (2) (i) but it has been substituted as “Chairperson” to include all genders including female and transgender who can become Chief Justice of Pakistan.

(2)       More so, before the Amendment Judicial Commission of Pakistan was responsible for the appointment of all the Judges of Supreme Court, High Court and Federal Shariat Court and composition of its Commission’s members was same for all the Courts.

(ii)       Three most senior Judges of the Supreme Court – Member;

Analysis:

(1)       “Most senior” Judge does not mean “senior most” Judge. It means the senior amongst those present at specific time, which can even be a junior most in the absence of seniors. Through this amendment not only one Judge has been excluded but an attempt has been made to place juniors over their seniors. Hence the amendment must specify, “most senior” serving judge as Judges may include politically nominated ad-hoc, retired Judge or a person with no degree in law or experience in Judiciary as in case of recently appointed Dr Qibla Ayaz.

(iii)      Most senior Judge of the Constitutional Benches – Member;

Analysis: “Most senior” Judge of Constitutional Benches Judge does not mean “senior most” Judge. It means the senior amongst those present at specific time, which can even be a junior most in the absence of seniors. Through this amendment not only one Judge has been excluded but an attempt has been made to place juniors over their seniors. Hence the amendment must specify, “most senior” serving judge as Judges may include politically nominated ad-hoc, retired Judge or a person with no degree in law or experience in Judiciary as in case of recently appointed Dr Qibla Ayaz.

(iv)      Federal Minister for Law and Justice – Member;

Analysis: Federal Minister is also a politician, why he has not been counted in the list of politicians.

(v)       Attorney General for Pakistan – Member;

Analysis: The Attorney General is the only representative from Federal Government. However, Secretary Law and Justice will not be member of the Commission, which has its drawbacks.

(vi)      An advocate having not less than fifteen years of practice in the Supreme Court to be nominated by the Pakistan Bar Council for a term of two years – Member;

Analysis: Amendment provides nomination of any advocate with not less than 15 years experience in Supreme Court. The word “senior’ has been removed, allowing juniors to be nominated. This has been done to place juniors Advocates over the seniors.

(vii)     Two members from the Senate and two members from the National Assembly of whom two shall be from the Treasury Benches, one from each House, and two from the Opposition Benches, one from each House. The nomination from the Treasury Benches shall be made by the Leader of the House and from the Opposition Benches by the Leader of the Opposition – Members;

Analysis: The number of members from National Assembly and Senate are four. One more member will be Federal Minister for Law and Justice while a woman or non-Muslim is also to be nominated by the Speaker of the National Assembly. This brings half of the members of the Commission either politician or those sponsored by them. In addition, members may include retired Judges and technocrats, who are politically nominated. Thus, the Judges will be minority in the Commission.

(viii)    A woman or non-Muslim, other than a member of Majlis-e-Shoora (Parliament). who is qualified to be a member of the Member Senate as a technocrat, to be nominated by the Speaker of the National Assembly for a term of two years.

Analysis:

(1)       The nominated member; a woman or non-Muslim will also be politically sponsored. When judges and members of commission are selected on merit why a quota for women and non-Muslims is required?

(2)       Out of the total 15 serving Judges there are two women Judges in the Supreme Court and numerous in the High Courts and lower courts. The selection of Judges is on merit so allocation of quota would be counter productive.

           

Explanation: if the most senior of the Constitutional Benches is Chief Justice of Pakistan or is amongst the Judges in paragraph (ii) of clause (2), the Judge who is in next seniority below the Judge referred in paragraph (ii) of clause (2) shall became the member of the Commission.

Analysis: This means that only Judges form the Constitutional Benches will be nominated for the Commission, which is unjustified as seniority must be drawn from complete serving Judges of the Supreme Court.

For clause (3), the following shall be substituted,

namely

"(3) Notwithstanding anything contained in clause (1), or clause (2), the Chief Justice of Pakistan shall be nominated by the Special Parliamentary Committee, in this Article referred to as the Committee, from amongst the three most senior Judges of the Supreme Court. The Committee shall send the name of the nominee to the Prime Minister who shall forward the same to the President for appointment:

Analysis:

(1)       Constitution of Special Parliamentary Committee to nominate the Chief Justice of Pakistan or other Judges is unconstitutional and is against the spirit of Article 2 A, which envisages that the independence of Judiciary shall be fully secured. The mandate of Article 175 (3) regarding separation of the Judiciary from the executive has also been violated.

Provided that where the nominee under this clause declines a Judge from the remaining Judges amongst the three most senior Judges shall be considered and nominated:

Provided further that where the nominee under first provision also declines the next most senior Judge if he is not from amongst the three most senior Judges shall be considered and nominated by the Committee and so on till the nominee under this clause is appointment as the Chief Justice of Pakistan.

Analysis:

(1)       Transparency is required in the appointment of Judges, and before forwarding the names as nominees, willingness from the concerned Judges may be sought to remove any chance of denial and wastage of time and efforts.

(2)       Why a Judge should be allowed to decline promotion without requesting for premature retirement or resignation from service? The explanation aims to create an environment of disrespect for the senior Judges as a junior Judge may be hopeful of becoming future Chief Justice, if able to properly manipulate. A performance, efficiency and conduct based transparent grading system is required.

After clause (3), substituted as aforesaid, the following new

clauses shall be inserted, namely:-

"(3A)  The Committee shall consist of the following twelve members, namely:

(i) eight members from the National Assembly; and

(ii) four members from the Senate:

Provided that when the National Assembly stands dissolved, the total membership of the Committee shall consist of the members from Senate only mentioned in paragraph (ii) and the provisions of this Article shall, mutatis mutandis, apply.

Analysis: The same wording are given in Article 175A (9) except, “four members of National Assembly” which after the Amendment has increased to “eight”. Hence, there is no justification in reproducing the whole clause.

(3B)    The Parliamentary Parties shall have proportional representation on the Committee, based on their strength in Majlis-e-Shoora (Parliament), to be nominated by their respective Parliamentary Leaders. The Chairman and the Speaker of the National Assembly, as the case may be, shall notify members of the Committee.

(3C)    The Committee, by the majority of not less than two-thirds of its total membership, within fourteen days prior to the retirement of the Chief Justice of Pakistan shall send the nomination as provided in clause (3): Provided that the first nomination under clause (3), after commencement of the Constitution (Twenty-sixth Amendment) Act, 2024 (XXVI of 2024), shall be sent within three days prior to the retirement of the Chief Justice of Pakistan.

Analysis: For 3A, 3B and 3C, the constitution of Special Parliamentary Committee is unconstitutional and is against the spirit of Article 2 A, envisages that the independence of Judiciary shall be fully secured.

(3D)    No action or decision taken by the Commission or the Committee shall be invalid or called in question only on the ground of existence of a vacancy therein or of the absence of any member from any meeting thereof.

Analysis:

(1)       The clause has validated that despite vacancies in Commission or Committee or absence of certain members, approval will be made by not less than two-thirds of its total membership present on that day, which is unfair and against the democratic norms.

(2)       Already we have experience of kidnapping and blackmailing of members of parliament and others. Hence action or decision taken by the Commission or the Committee should invalid unless all the members are present and majority of not less than two-thirds of its total membership approve an action or a decision 

(3E)     The meetings of the Committee shall be held in camera and the record of its proceedings shall be maintained.

Analysis:

(1)       There is no wisdom in repeating the text of Article 175A (15) in the Amended clause (3E) when ditto “The meetings of the Committee shall be held in camera and the record of its proceedings shall be maintained” has already been given in the clause. More so, why clause (15) has been omitted when same is reproduced in (3E).

(2)       In the presence of Right to Information Act, a Judge who is unable to become Chief Justice despite being the senior most, must be informed reasons for such decision of rejection. If the Committee found him inefficient, involved in misconduct, or corruption, the Judge should not be allowed to continue as a Judge rather than allowing further damage the judiciary.

 

(3F)     The provisions of Article 68 shall not apply to the proceedings of the Committee.

Analysis: This means the scheme of amendments has made Article 68 null and void for the proceeding of Committee, despite being members of the Parliament. In other words Committee has been empowered to violate Article 68 but not the Parliament. More so, this will set wrong precedent for other Committees.

(3G)    The Committee may make rules for regulating its procedure."

Analysis:

(1)       Clause 3 (G) is in clash with Clause (4). Both the Committee and the Commission have been authorized make rules regulating its procedure.

(2)       Article 191 entitles Supreme Court to make rules regulating the practice and procedures of the Court while Article 202 entitles High Courts to make rules regulating the practice and procedures of the Court or any Court Subordinate to it.

For clause (4), the following shall be substituted:-

"(4) The Commission may make rules regulating its procedure including the procedure and criteria for assessment, evaluation and fitness for appointment of Judges.";

Analysis:

(1)       Clause (4) is in clash with Clause 3 (G). Both the Committee and the Commission have been authorized make rules regulating its procedure.

(2)       There should be a central authority that should frame rules and procedures to synchronize nomination and evaluation process of the Judges.

In clause (5):-

(A)       In paragraph (ii), for the words "the most senior Judge of that High Court", the words "Head of Constitutional Benches of that High Court" shall be substituted;

Analysis:

(1)       Instead of the senior most Judge of a High Court, the Heads of Constitutional Benches of High Court have been made senior who might not be the most senior despite their nomination as members of Benches. If two senior most Judges are appointed in the same Bench, the other Head of the other Benches will be senior to their senior Judge who is second in seniority in a particular Bench.

(2)       Since all nominations are made by the Commission comprising of politician-based majority, the nominated Heads of Constitutional Benches would be under pressure from those who nominated them. It will also invite disrespect for the senior Judges when a junior is placed over them.

(B)       in paragraph (iv), for the colon, occurring for the first time, a full stop shall be substituted and thereafter the following explanation shall be inserted, namely:-

Explanation: If Head of the Constitutional Benches of High Court is the Chief Justice of that High Court, the Judge who is next in seniority shall become member of the Commission.

Analysis: The Amendment provides that the Bench headed by Chief Justice will entertain next senior of that Bench (who might be junior to the Heads of other benches) as member of the Commission. This means that senior most judges will not appointed in the Benches at the time of vacancy and those senior most Judges who are not part of Benches will not be eligible for the slot of Chief Justice of the High Court. More so, in a Bench headed by Chief Justice a junior Judge will automatically become most senior of the Bench and may be nominated for the Commission, which is against the principle of seniority.

(C)       For the first proviso, the following shall be substituted namely:-

"Provided that for appointment of the Chief Justice of a High Court the Judge mentioned in paragraph (ii), if he is the most senior Judge of a High Court, shall not be member of the Commission:"

Analysis: Obviously Commission cannot nominate its member as candidate for the slot of Chief Justice of a High Court.

(D)       In the second proviso, for the expression "Chief Justice of Pakistan in consultation with the four member Judges of the Commission mentioned in paragraph (ii) of clause (2)",

the word "Commission" shall be substituted; and

Analysis: The powers of the Chief Justice have been given to the Commission

(E)       In the second proviso, amended as aforesaid, for the fulI stop at the end a colon shall be substituted and thereafter, the following new proviso shall be added, namely:-

"Provided also that the amendments in paragraph (ii)

and first proviso shall take effect on coming into force of

Article 202A for the respective High Courts.

(vii) in clause (6),-

• In paragraph (i), the word "and" shall be omitted
• In paragraph (ii), for the words "the most senior Judge of that High Court", the words "Head of Constitutional Benches of that High Court" shall be substituted;
• In paragraph (ii), for the colon, a semi-colon shall be substituted and thereafter, the following new paragraphs shall be added, namely:-

"(iii) an advocate having not less than fifteen years of practice in the High Court to be nominated by the Islamabad Bar Council for a term of two years; - Member" and

Analysis: Nomination of any advocate with not less than 15 years experience in High Court. The word “senior’ has been removed, allowing juniors to be nominated. This has been done to place juniors over the seniors.

(iv) a Federal Minister nominated by the Prime Minister - Member"

Analysis: Sufficient number of politician have been included Secretary of Law and Justice should be included instead.

• In the second proviso, after the expression "Court, the", the words "Explanation and" shall be inserted.

For clause (8), the following shall be substituted, namely:-

"(8) The Commission, by the majority of its total membership, shall nominate one person for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be, to the Prime Minister who shall forward the same to the President for appointment."

Analysis: It has been provided that the Prime Minister shall forward the same to the President for appointment but it has not been clarified if Prime Minister has any power to disapprove the nomination or return to the Commission along with his remarks.

(ix) clauses (9) and (10) shall be omitted;

Analysis: An Amendment has been made through 175A (3A) when the same wordings are already given in Article 175A (9) so omission is not justified rather new insertion is required to be deleted.

(x) in clause (11), for the word "Senate", the word "National Assembly" shall be substituted;

(xi)      clauses (12), (13), (14), (15), (16) and (17) shall be omitted; and

Analysis: Clause 15 provides meeting of the Committee in Camera and record of proceeding will be maintained.

(xii)     after clause (17), omitted as aforesaid, the following new clauses shall be added, namely:-

(18)     The Commission in clause (2) shall conduct an annual performance evaluation of Judges of the High Courts.

Analysis: In order to conduct an annual performance evaluation of Judges, all members should be qualified to be judges of Courts, capable enough to make such job-based evaluation.

(19)     If the performance of a Judge of a High Court is found by the Commission to be inefficient, it shall grant him such period for improvement, as it deems appropriate. If, upon completion of the period so granted, the performance of such Judge is again found to be inefficient, the Commission shall send its report to the Supreme Judicial Council.

Analysis:

(1)       When Supreme Judicial Council of Pakistan is the sole authority to take action against the Judges, how Judicial Commission can be allowed to issue warning letters to the Judges without the approval of Supreme Judicial Council and the President of Pakistan.

(2)       What about Judges of Supreme Court, Federal Shariat Court and other Tribunals if they are found inefficient or their performance below desired standard? No new procedure has been devised in line with recent Amendments, whereas an implementable procedure for performance evaluation already exists.

(20)     The Commission may make separate rules for setting up effective standards for performance evaluation for the purpose of clauses (18) and (19).

Analysis: If the Supreme Judicial Commission is sole authority to investigate and take action on the report/ recommendations of Judicial Commission against the Judges why separate rules for setting up effective standards for performance evaluation for the purpose of clauses (18) and (19) should not be vested in Supreme Judicial Council and Judicial Commission permitted to device its own standards 

(21)     For the purposes of this Article and subject to the rules made by the Commission, there shall be a secretariat of the

Commission to be headed by a secretary and shall include such other officers and staff, as may be necessary.

Analysis:

(1)       The role, responsibility and the determination of appealing authority is unclear. The Supreme Judicial Council is supreme then Secretariat of Supreme Judicial Council should be established, headed by a Secretary rather than a any other Commission or Committee.

(2)       Secretariat of Judicial Commission has been established, headed by a Secretary, but Secretary is neither member of the Commission, Parliamentary Committee or Supreme Judicial Council.  

(3)       There is requirement to clarify if the Secretary will be a federal secretary or retired Judge or someone else. Will the Federal Public Service Commission recruit the Secretary and other officers of the Secretariat or it will be the President of Pakistan to appoint them?

(22)     One-third of the members of the Commission may requisition a meeting of the Commission by sending a written request to the Chairperson who shall convene the meeting of the Commission not later than fifteen days from the receipt of such requisition. If the Chairperson fails to convene a meeting within the aforesaid period, the secretary shall convene the meeting within seven days of the expiry of the aforesaid period.

Analysis: It sound suspicious that an emergency like situation has been created where requisition of a meeting requires a written request by one-third of the members of the Commission (only four members) and if the Chairperson fails to convene a meeting within 15 days, the Secretary will convene the meeting without Chairperson or other members by simple majority present on that day. The action or decision, thus taken will be final. The Amendment is too aggressive to be retained 

(23)     For each anticipated or actual vacancy of a Judge in the Supreme Court, the Chief Justice of the Federal Shariat Court, the Chief Justice of a High Court, a Judge in the Federal Shariat Court or a Judge in a High Court, any member of the Commission may give nominations in the Commission for appointment against such vacancy."

Analysis:

(1)       There is a Chief Justice and Judges in the Supreme Court of Pakistan, Federal Shariat Court and High Courts, why for anticipated or actual vacancy of Judges of lower courts any member of the Commission should be empowered to forward nomination without the approval of respective Chief Justices? The Amendment is clash with other provisions and not sustainable.

(2)       When as per the new Amendment, the evaluation and performance of Judges of High Courts is responsibility of Judicial Commission on what basis the Chief Justice, the Judge in the Federal Shariat Court or a Judge in a High Court will nominate against each anticipated or actual vacancy of a Judge?

(3)       In the Amendment, a Judge in the Federal Shariat Court or a Judge in a High Court has been empowered to give nomination of anticipated or actual vacancy of a Judge. Under which rule or procedure a Judge can forward nomination without the approval of Chief Justice?

(4)       The Commission’s role is to receive nominations of anticipated or actual vacancy from various Courts then how can Commission be allowed to give nominations for each anticipated or actual vacancy of a Judge to itself without involving Chief Justices?

8. Amendment of Article 177 of the Constitution. In the Constitution, in Article 177, for clause (2), the following shall be substituted, namely:-

"(2) A person shall not be appointed as Judge of the Supreme Court unless he is a citizen of Pakistan and

(a) has for a period of, or for periods aggregating, not less than five years been a Judge of a High Court; or

(b) has, for a period of not less than fifteen years, been an advocate of a High Court and is an advocate of the Supreme Court.".

Analysis:

(1)       Term “periods aggregating” is used in Article 177 to accommodate those judges who were judges in East Pakistan before separation from Pakistan. The period aggregating was used to fill that gap for those Bengalis and non-Bengali Judges from East Pakistan who intended to acquire Pakistani citizenship. In normal situation term “periods aggregating” should be deleted to remove any confusion.

(2)       The “for periods aggregating” can be misused by advocates who served in Courts outside Pakistan or those who are doing businesses or serving elsewhere but considered equivalent to High Courts. More so, continuous service in judiciary should be ensured otherwise former judges who left Judiciary and were engaged in businesses or became politicians would be entitled to become Judges.

9. Amendment of Article 179 of the Constitution. In the Constitution, in Article 179, for full stop at the end, a colon shall be substituted and thereafter the following provisos shall be added, namely:-

"Provided that the term of the Chief Justice of Pakistan shall be three years or unless he sooner resigns or attains the age of sixty-five years or is removed from his office in accordance with the Constitution, whichever is earlier:

Provided further that the Chief Justice of Pakistan on completion of his term of three years shall stand retired notwithstanding his age of superannuation."

Analysis: This would be a serious disadvantage with regard to service benefits and pension etc or in cases burden on Government. More so, after completing this tenure of three years, a former Chief Justice will be serving under his juniors.

10. Amendment of Article 184 of the Constitution. In the Constitution, in Article 184, in clause (3), for full stop at the end, a colon shall be substituted and thereafter the following provision shall be added, namely:-

"Provided that the Supreme Court shall not make an order or give direction or make a declaration on its own or in the nature of suo moto exercise of jurisdiction beyond the contents of any application filed under this clause.".

Analysis: The Amendment is against Quran’s Verses including Surat Nisa 4:75. A habitual liar or fraudulent will get away by filing fake cases in the court and escaping punishments.

11. Amendment of Article 185 of the Constitution. In the Constitution, in Article 185, in clause (2), in paragraph (d), for the words "fifty thousand", the words "one million" shall be substituted.

Analysis: The Amendment is against the natural justice as amount of Rs 50,000 is sufficient for an average person bear a loss but raising the amount to minimum Rs 10 lac or property would deprive justice to many. No doubt, the number of pending cases in the Supreme Court would decrease many folds by raising the minimum amount but it should not be at the cost of denial to justice.

12. Substitution of Article 186A of the Constitution. In the Constitution, for Article 186A, the following shall be substituted, namely:-

"186A. Power of Supreme Court to transfer cases. The Supreme Court may, if it considers it expedient to do so in the interest of justice, transfer any case, appeal or other proceedings, pending before any High Court to any other High Court or to itself."

Analysis:

(1)       It is violation of Article 199 where if remedy is available at lower courts, higher Court is not empowered to entertain it unless other remedies are exhausted.

(2)       The Amendment is in violation of Article 185 as no appeal other than the judgment, decree, final order or sentence of High Court falls under the jurisdiction of any Court as well as it accounts direct interference in the High Court.

(3)       It is also violation of new amendment in article 184(3) where the Supreme Court has been barred to make an order or give direction or make a declaration on its own beyond the content of application filed.

13. Amendment of Article 187 of the Constitution. In the Constitution, in Article 187, in clause (1), for full stop at the end, a colon shall be substituted and thereafter the following proviso shall be added, namely:- 

"Provided that no order under this clause shall be passed otherwise than in pursuance of any jurisdiction vested in and exercised by the Supreme Court."

Analysis: The amendment is ambiguous as in Article 187 all aspects are covered. Rather after the establishment of Supreme Courts of Azad Jammu and Kashmir and Gilgit Baltistan fresh Amendment is required. The Amendment is not sustainable.

14. Insertion of new Article 191A of the Constitution. In the Constitution, after Article 191, the following new Article 191A shall be inserted, namely:-

"191A. Constitutional Benches of the Supreme Court.

(1) There shall be Constitutional Benches of the Supreme Court comprising such Judges of the Supreme Court and for such term as may be nominated and determined by the Judicial Commission of Pakistan from time to time:

Provided that the Constitutional Benches may comprise equal number of Judges from each Province.

Analysis:

(1)       It accounts to direct interference in the powers and working of Chief Justice. The Chief Justice should be solely responsible for the constitution of benches and the term of these benches as he has a better picture of workload and abilities of the judges including other factors like leave health etc.

(2)       Justice is blind and for efficient and effective justice system, Judges should be nominated on purely merit not on quota system. Attempts are being made to mold Judiciary on the lines of provincialism, which would weaken the federation.

(3)       We can clearly perceive that a path through Amendments leading to disintegration of Pakistan by establishing Supreme Courts at provincial level in the future.

(2)       The most senior Judge amongst Judges nominated under clause (1) shall be the most senior Judge of the Constitutional Benches.

Explanation. In computing the period during which a person has been an advocate of a High Court or has held judicial office, there shall be included any period during which he has held judicial office after he became an advocate or, as the case may be, the period during which he has been an advocate after having held judicial office."

Analysis: This will allow retired government servants and others including Advocates becoming Judges, without appearing in competitive examination or possessing experience as a judge in the High Court.

(3)       No Bench of the Supreme Court other than a Constitutional Bench shall exercise following jurisdictions vested in the Supreme Court, namely:-

(a) original jurisdiction of the Supreme Court under Article 184;

Analysis: The Amendment would deprive Supreme Court from it jurisdiction over the question of public importance with reference to enforcement of any Fundamental Rights. This is neither the constitutional matter nor issue between two or more Governments requiring declaratory judgments. Hence, the Supreme Court’s original jurisdiction of the Supreme Court under Article 184 should be restored.

(b) appellate jurisdiction of the Supreme Court under clause (3) of Article 185, where a judgment or order of a High Court involves constitutionality of any law or a substantial question of law as to the interpretation of the Constitution; and

Analysis: The Amendment has been made to deprive common public their right to justice and fundamental rights. It is in contradictions with other Articles.

(c) advisory jurisdiction of the Supreme Court under Article 186.

(4)       For the purposes of clause (3), a Bench consisting of not less than five Judges, to be nominated by a committee comprising the most senior Judge of the Constitutional Benches and next two most senior Judges from amongst the Judges nominated under clause (1), shall hear and dispose of such matters.

Analysis: The Committee as well as the Commission, both are empowered to nominate Judges of Constitutional Benches; five Judges by Committee and two by the Commission but the respective Chief Justices have been ignored.

(5)       All petitions, appeals or review applications against judgments rendered or orders passed, to which clause (3) applies, pending or filed in the Supreme Court prior to commencement of the Constitution (Twenty-sixth Amendment) Act, 2024 (XXVI of 2024), forthwith stand transferred to the Constitutional Benches and shall only be heard and decided by Benches constituted under clause (4).

Analysis: Benches constituted earlier have been bared from hearing any petition, appeal or review application against judgment or order passed.

(6)       Notwithstanding anything contained in the Constitution but subject to law, the Judges nominated under clause (1) may make rules regulating the practice and procedure of the Constitutional Benches.". 

Analysis: When Supreme Court under the Chief Justice of Pakistan is the main institution why Judges of the Constitutional Benches are also empowered to make rules, regulations, practice and procedures.

15. Amendment of Article 193 of the Constitution. In the Constitution, in Article 193, for clause (2), the following shall be substituted, namely:-

"(2) A person shall not be appointed as a Judge of a High Court unless he is a citizen of Pakistan, is not less than forty years of age, and

(a) he has, for a period of not less than ten years, been an advocate of a High Court; or

(b) he has, for a period of not less than ten years, held a judicial office in Pakistan.

Analysis: How an advocate with 10 years experience in High Court without judicial experience can be appointed as a Judge of High Court. This would deteriorate the standard of justice system.

16. Amendment of Article 199 of the Constitution. In the Constitution, in Article 199, after clause (1), the following new clause (1A) shall be inserted, namely:

"(1A) For removal of doubt, the High Court shall not make an order or give direction or make a declaration on its own or in the nature of suo motu exercise of jurisdiction beyond the contents of any application filed under clause (1).".

Analysis: If a doubt exists which is directly linked with the application or a decision about which general masses or authorities were in doubt, how a Court can be prevented from not going beyond the contents of any application and setting a precedent with regard to all other cases? In all such cases, complete justice demands the Court to make an order or give direction or make a declaration on its own or in the nature of suo motu exercise of jurisdiction.

17. Insertion of Article 202A of the Constitution. In the Constitution, after Article 202, the following new Article 202A shall be inserted, namely:-

"202A. Constitutional Benches of High Courts. (1) There shall be Constitutional Benches of a High Court comprising such Judges of a High Court and for such term as may be nominated and determined by the Judicial Commission of Pakistan as constituted under clause (5) of Article 175A, from time to time.

Analysis: The Constitution is a Federal Subject and Supreme Court is there to deal with the Constitutional matters. If there any case dealing with the Constitutional issue, it should be the prerogative of Chief Justice of the High Courts to transfer it to the Court having jurisdiction.

(2) The most senior Judge amongst Judges nominated under clause (1) shall be the Head of the Constitutional Benches.

(3) No Bench of a High Court other than a Constitutional Bench shall exercise jurisdiction vested in the High Court under sub- paragraph (i) of paragraph (a) and paragraph (c) of clause (1) of Article 199.

Analysis: Baring Supreme Court and High courts from dealing with basis fundamental rights and confusing it with the constitutional issues account depriving general public of justice. The Amendment is violation of Fundamental Rights protected by the Constitution.

(4) For the purposes of clause (1), a Bench, to be nominated by a Committee comprising the Head of the Constitutional Benches. and next two most senior Judges from amongst the Judges nominated under clause (1), shall hear and dispose of such matters.

Analysis: This means that the Chief Justice and most senior Judges will be under direct control of the Committee who would confine them in a single Bench to hear cases, which the Committee deems appropriate. This account to a political interference over the Judiciary.

(5) All petitions under sub-paragraph (i) of paragraph (a) and paragraph (c) of clause (1) of Article 199 or appeals therefrom, pending or filed in a High Court prior to commencement of the Constitution (Twenty-sixth Amendment) Act, 2024 (XXVI of 2024), subject to clause (7), forthwith stand transferred to the Constitutional Benches and shall only be heard and decided by Benches constituted under clause (4).

(6) Notwithstanding anything contained in the Constitution but subject to an Act of Majlis-e-Shoora (Parliament) in respect of the Islamabad High Court and an Act of Provincial Assembly in respect of other respective High Courts, a High Court may make rules regulating the practice and procedure of the Constitutional Benches.

 

Analysis:

(1)       The Judiciary cannot be allowed to act under the provinces, as it is a Federal Subject.

(2)       There is ambiguity as in some Amendments Judicial Commission of Pakistan is empowered to make rules regulations practice and procedures, while in others it is the Parliamentary Committee whereas other Articles provides the Courts to make rules, regulations, practice and procedures.

(7) This Article shall come into force, if in respect of

• the Islamabad High Court, both Houses of Majils-e-Shoora (Parliament) in the joint sitting; and

(b) a High Court, the respective Provincial Assembly, through a resolution passed by majority of the total membership of the joint sitting or the respective Provincial Assembly, as the case may be, give effect to the provisions of this Article.".

Analysis: The Judiciary cannot be allowed to act under the provincial governments, as it is a Federal Subject and under the President and through him the Governors of the Provinces. By setting a precedent where the law passed by the Parliament cannot acquire status of law of the country till the time Provincial Assembly pass through a resolution passed by majority of the total membership of the joint sitting or the respective Provincial Assembly give effect to the Article. It is against the spirit of constitution and an anti-state action

18. Amendment of Article 203C of the Constitution. In the Constitution, in Article 203C, in clause (3), after the words "High Court", the words "or a Judge of the Federal Shariat Court qualified to be a Judge of the Supreme Court" shall be inserted.

Analysis: The Amendment allows a Judge of the Federal Shariat Court qualified to be a Judge of the Supreme Court to become the Chief Justice of Federal Shariat Court. Other Amendments including Article 177 (2) allow a person having periods aggregating, not less than five years as a Judge of a High Court; or not less than fifteen years as an advocate of a High Court and is an advocate of the Supreme Court to be appointed as Judge of the Supreme Court. Hence a Judge of High Court or an Advocate is entitled to become Chief Justice of Federal Shariat Court. The Chief Justice with such criteria and inadequate experience in judiciary will ruin Federal Shariat Court.

The Amendment allow Judges of Supreme Court, High Court or Federal Shariat Court to became Chief Justice 203 (3) provides ” the chief justice is the person who is or has been or is qualified to be the judge of the …………”

 Amendment of Article 203D of the Constitution. In the Constitution, in Article 203D, in clause (2), in the proviso, for the full stop at the end, a colon shall be substituted and thereafter the following new proviso shall be added, namely:-

"Provided further that appeal against decision given after the commencement of the Constitution (Twenty-sixth Amendment) Act, 2024 (XXVI of 2024) shall be disposed of within twelve months where after the decision shall take effect unless suspended by the Supreme Court."

Analysis:

(1)       The Amendment provides that if no Judgment is passed within twelve months, the earlier decision will take effect unless suspended by the Supreme Court. In fact, the Amendment allowed the Supreme Court permission to delay their Judgments on law repugnant to the Injunctions of Islam for twelve months and after that there is still no binding to decide in a frame of time. In contrast, do other decisions by the Court to take effect if judgments on Appeals are not issued within a twelve months?

(2)       There should be system of referring the bills moved in the National Assembly to be available to Federal Shariat Court and the general public to highlight if any clause or the Bill itself is repugnant to the Injunctions of Islam rather than allowing to becoming a Law and thereafter undergoing procedures

20. Amendment of Article 208 of the Constitution. In the Constitution, in Article 208, for the words "Supreme Court and the Federal Shariat Court", the expression "Supreme Court, the Federal Shariat Court and the Islamabad High Court" shall be substituted. 

Analysis:

(1)       The Amendment lack substance and may create disparity between High Courts. There is a special role of Islamabad High Court, which is a Federal Court and if there is some doubt it is a question of law to be determined. If not being the case, Islamabad territory falls in Punjab province therefore should fall under the Governor. Under the Article 194, an oath is to be taken before Governor is in the same manner that is for Chief Justices of High Courts. All High Courts have the same roles within their jurisdiction and Islamabad High Court should not be an exception.

(2)       The provided clause under article 208 already allow High Court for Islamabad Capital Territory to make rules with the approval of the President.

21. Substitution of Article 209 of the Constitution. In the Constitution, for Article 209, the following shall be substituted, namely:-

"209. Supreme Judicial Council. (1) There shall be a Supreme Judicial Council of Pakistan, in this Chapter referred to as the Council.

(2) The Council shall consist of

(a) the Chief Justice of Pakistan:

(b) the two next most senior Judges of the Supreme Court; and

(c) the two most senior Chief Justices of the High Courts.

Explanation. For the purpose of this clause, the inter se seniority of the Chief Justices of the High Courts shall be determined with reference to their dates of appointment as Chief Justice otherwise than as acting Chief Justice, and in case the dates of such appointment are the same, with reference to their dates of appointment as Judges of the High Courts.

(3) If at any time, the Council is inquiring into the capacity, efficiency or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or any other cause, then if such member is the-

(a) Chief Justice or Judge of the Supreme Court, the Judge of the Supreme Court who is next in seniority below the Judges referred to in paragraph (b) of clause (2); and

(b) Chief Justice of a High Court, the Chief Justice of another High Court who is next in seniority amongst the Chief Justices of the remaining High Courts, shall act as a member of the Council in his place.

(4) If, upon any matter inquired into by the Council, there is a difference of opinion amongst its members, the opinion of the majority shall prevail, and the report of the Council to the President shall be expressed in terms of the view of the majority.

(5) If, on information from any source or the report from the Commission under clause (19) of Article 175A, the Council or the President is of the opinion that a Judge of the Supreme Court or of a High Court-

(a) may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or

(b) may be inefficient in the performance of the duties of his office; or

(c) may have been guilty of misconduct, the Council, on its own motion or on receipt of report from the Commission under clause (19) of Article 175A or on the direction of the President, shall inquire into the matter.

(6) If, after inquiring into the matter, without unnecessary delay and in case of report or direction under clause (5), within six months, the Council reports to the President that it is of the opinion that-

(a) the Judge is incapable of performing the duties of his office or is found inefficient in performance of the duties of his office or has been guilty of misconduct; and

(b) he should be removed from office,

(7) A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article.

Analysis:

(1)       It is highly insulting that name of Chief Justice has been included through an Amendment that he or other Judges of the Council as well as other Judges can be inquired upon on information from any source or the report from the Commission by the Supreme Judicial Council and will be removed if he is absent or is unable to act due to illness or any other cause or is incapable of performing the duties of his office or is found inefficient in performance of the duties of his office or has been guilty of misconduct he should be removed from office.

(2)       As per Article 203 C (4B) the Chief Justice and the Judges cannot be inquired upon or removed from office except by the orders of President or own motion of Supreme Judicial Council.

(8) The Council shall issue a code of conduct to be observed by Judges of the Supreme Court and the High Courts.

Analysis: It has already been provided in Article 209 (6) so there is no requirement of duplicating.

(9) Subject to the rules made by the Council, there shall be a secretariat of the Council to be headed by a secretary and shall include such other officers and staff, as may be necessary.".

Analysis: It will be extra burden by allowing a Secretariat of Judicial Council of Pakistan.

22. Amendment of Article 215 of the Constitution. In the Constitution, in Article 215, in clause (1).-

(A) after the first provision, the following new proviso shall be inserted, namely: "Provided further that the Commissioner and a member shall notwithstanding the expiration of his term, continue to hold office until his successor enters upon the office:"; and

(B) in the existing second proviso, for the word "further", the word "also" shall be substituted.

Analysis: It accounts to inefficiency and misconduct by not arranging the substitute of a retiring person within time. There should be even overlapping time to acquaint with the various aspects in the conduct of affairs and bottle necks. The permission to continue to hold office after retirement until his successor enters upon the office can have negative impact to fair and free elections as well as transparency.

23. Amendment of Article 229 of the Constitution. In the Constitution, in Article 229, for the expression "two-fifths", the expression "one-fourth" shall be substituted.

Analysis: The strength required of the Houses or provincial Assembly to refer any proposed law is or not repugnant to Islamic injections has been reduced from two-fifths to one-fourth. In other words if one-fourth strength cannot be achieved the proposed law even if repugnant to Islamic injections will not be allowed to be referred to Islamic Council.

24. Amendment of Article 230 of the Constitution. In the Constitution, in Article 230, in clause (4), for the full stop at the end, a colon shall be substituted and thereafter the following proviso shall be added, namely:-

"Provided that the final report in any case shall be considered within twelve months after it has been laid.".

Analysis: The Islamic Council was to submit its final report within 7 years after appointment but it has not been done. However, as per the new Amendment there is no compulsion over the final report rather the Amendment provided extension of period for the discussion and consideration to 12 months, followed by time given to the Assemblies for consideration, followed by two years to enact law. Hence the implantation of any Final Report has been delayed to at least three years.

25. Amendment of Article 255 of the Constitution. In the Constitution, in Article 255, in clause (2), for the words "that person", occurring at the end, the expression "the Chief Justice of a High Court, in case of a Province and by the Chief Justice of Pakistan, in all other cases" shall be substituted.

Analysis: It is brought out that under the constitution an oath is required to be made before a specified person but in case of prolong absence or other impracticability another person may be nominated by that specified person if rules permits but the Amendment has taken this right from that specified person to appoint his nominee and gave this right to Chief Justice of Pakistan. More so, the condition of oath set in Article 178 the a Chief Justice and any other judge of Supreme Court has to make oath before President as per Third Schedule. Also in Article 194 oath is to make before Governor in case of Chief Justices of High Courts.

26. Amendment of Article 259 of the Constitution. In the Constitution, in Article 259, in clause (2), for the words "or nursing", the expression", science, technology, medicine, arts or public service" shall be substituted.

Analysis: Article 259 provides that President may award decorations in recognition of gallantry, academic distinction or distinction in the field of sports and nursing. By replacing nursing with science, technology, medicine, arts or public service is a matter of concern as it is directly related to great service of nursing, especially in hospitals and Hillal-e-Ahmar.

27. Amendment of the Fourth Schedule to the Constitution.-In the Constitution, in the Fourth Schedule, in PART I, in entry 2, after the expression " cantonment areas,", the expression "local taxes, fees, cess, charges, tolls in such areas," shall be inserted.

Analysis:

(1)       We have past practices since the British times that local taxes, fees, cess, charges, tolls in Cantonment areas were collected by the Municipal Committee of the district under which the area Cantonment falls. There is annual Budget allocation to meet the expenses and demands of Cantonment Board. Article 187 (2) also support that such areas are part of the province within jurisdiction of the High Court of that province.

(2)       Due to sensitive nature - military, naval and air forces work; local self government the Cantonment areas, constitution and powers of such areas of Cantonment Authorities, regulation of house accommodation and delimitation because of and house accommodations in in Cantonment area have been included in Federal Legislative List. Inclusion of "local taxes, fees, cess, charges, tolls in such areas," cannot be something sensitive to be placed under Federal list.

(3)       Beside the above, most of the National Highways passes through Cantonment areas and if Cantonment Authorities and deputed to collect local taxes, fees, cess, charges, tolls in such areas, barriers will be erected everywhere which would seriously affect smooth flow of traffic and business. This might also develop a clash as both the authorities may consider their jurisdiction to collect fees, cess, charges, tolls etc.