THE landmark 26th Constitution Amendment assuredly ushers in an innovative Pakistan. National constitutions in any country determine the principles and norms of civic, administrative, economic and judicial life of a nation. Naturally, none can be static, as human progress and era to era societal changes necessitate additions, substractions, deletions in the national constitutions — corpus of national life. Therefore, the much publicity hyped 26th amendment in the national constitution of Pakistan is a response to the call of changing needs of the time and progressive requirements of the nation.
The history of national constitutions in Pakistan is a chequered one. For nine years after the benign birth of Pakistan, the state remained without a formal constitution. The first was introduced in 1956, followed by another in 1962 and then again in 1973. Thanks God, the 1973 Constitution stayed as an international face of the people of Pakistan. Birthing credit of 1973 Constitution goes to the dynamic statesmanship of Zulfikar Ali Bhutto.
Changes in the constitutions are a natural need and process; times change, so the change needs changes in laws, codes, constitutions; therefore no change should be seen from any sentimental angularity by anyone; change is a normal course of advancement of life; the ideological breaking news with reference to the 26th Amendment is that a specific deadline to eliminate the riba/interest based monetary system of Pakistan has been fixed as January 2028. And it is a great tiding for the nation that the monetary system in Pakistan shall be upgraded to implement the Shariah codes.
The 26th Amendment carries an unambiguous provision for appointment of judges in the superior courts of Pakistan; for this purpose Article 175-A of the 1973 Constitution has been amended; now the Supreme Judicial Commission of Pakistan shall comprise besides the Chief Justice of the Supreme Court, four senior judges of the Supreme Court and four members of Parliament of Pakistan: the modus operandi of inclusion of four members of Parliament in the Judicial Commission has also been settled down – one senator and one NA member to be nominated by the Prime Minister while one Senator and an NA member will be picked up by the Leader of the Opposition. This represents a well-balanced selection process.
As per 26th Amendment, a 12-member Parliamentary Committee – eight MNAs four Senators – shall be constituted; the amendment provides that instead of appointing the senior SC judge as Chief Justice of Pakistan a panel of three judges would be named to the Parliamentary Committee. Then the Committee shall recommend one of the judges from the panel of the three for appointment as Chief Justice of Pakistan; formally the Prime Minister will forward the recommendation to the President seeking his consent for issuance of the notification of the appointment of the Chief Justice of the Supreme Court.
Another important aspect of the amendment is that now onwards a Committee of three judges of the Supreme Court shall decide the operation of suo motu under the enforced Practice and Procedure Act; under a provision the Supreme Court would, if finds that ends of justice are not being carried out in a high court, transfer the sub-judice case to any other High Court for completion of legal proceedings; Now high courts won’t take up suo motu notice; the proceeding of selection of judges for appointment by the Judicial Commission shall be carried out in-camera but a record of the proceeding shall be maintained. Some more amendments have been incorporated in the Constitution of Pakistan.
Important feature of the 26th Constitutional Amendment is that the Judicial Commission will have senior most judges of the Supreme Court and four members of Parliament to be nominated by the Government and the Opposition in Parliament. Long Live Pakistan.
—The writer, a retired Secretary in AJK Govt, is a senior columnist, based in Rawalpindi.
