Senate & NA pass 26th Constitutional Amendment Bill amid PTI boycott

After the Senate passed the 26th Constitutional Amendment Bill 2024 with a two-thirds majority on Sunday evening, the National Assembly also passed the heavily contested bill with a two-thirds majority. The government needed to secure 224 votes to go over the line and it managed to secure 225 votes as some opposition members staged a walk out.

NA Speaker Ayaz Sadiq began the voting process after giving the floor to parliamentary leaders of various political parties. The bill was presented in the National Assembly by Law Minister Azam Nazeer Tarar during a session that commenced late Sunday night and extended into the early hours of Monday morning.

The bill has been in development for some time, with discussions facilitated by a special parliamentary committee formed last month. The committee included representatives from all political parties, including the PTI, and reviewed various proposals to finalise the bill's content.

After a brief recess, Pakistan People’s Party (PPP) Chairman Bilawal Bhutto-Zardari addressed the assembly, delivering a speech lasting over 50 minutes. He expressed his appreciation for Jamiat Ulema-e-Islam (F) Chief Maulana Fazlur Rehman, recognizing his pivotal role in facilitating the bill's passage.

“Maulana Fazlur Rehman did the most to ensure the success of this bill. His contribution has been historic, and I can proudly say he played the most significant part in it,” Bilawal stated. He stated that the amendments had been passed with 100 per cent political consensus.

Bilawal extended his gratitude to several political parties, including the Pakistan Muslim League-Nawaz (PML-N), Muttahida Qaumi Movement-Pakistan (MQM-P), Independent Parliamentary Group (IPP), JUI-F, Awami National Party (ANP), and others for their cooperation.

Notably, he also acknowledged the Pakistan Tehreek-e-Insaf (PTI), saying, “I also thank the PTI for playing a part in this historic achievement. This is a political success, and I wish you wouldn’t have portrayed your own victory as a loss.”

However, PTI’s Leader of the Opposition in the National Assembly, Omar Ayub Khan, took the opportunity to criticise the amendments, arguing that they failed to reflect the true will of the Pakistani people.

He directed a pointed remark at Law Minister Tarar and Bilawal, suggesting that those who had “gone missing” should also have been acknowledged during the expressions of thanks.

Ayub recounted allegations of mistreatment faced by PTI lawmakers, stating, “These were all tactics to pressure us. The mistreatment of Imran Khan in jail is also an example.”

The PTI alleged that seven of its lawmakers had been “abducted” and accused the government of attempting to enact the amendment under duress. Questioning the urgency of the amendment’s passage, Ayub asked, “What would have happened had it been passed on October 31?.”

He further expressed concern that the amendments aimed to undermine judicial independence, asserting, “We do not think this government is capable of bringing constitutional amendments. Therefore, we have instructed PTI members not to become part of this process.”

In response to the discussions, Defence Minister Khawaja Asif defended the amendment, stating that its passage through the Senate was essential to restore the respect and dignity of the parliament and the House. “There must be consistency in our political behaviour; otherwise, we will not gain the respect and dignity we seek,” he concluded.

Asif further emphasised that the constitutional amendments were not a novel initiative by the government but rather an extension of the Charter of Democracy, which had been unanimously endorsed by all political leaders, including Imran Khan.

The Charter of Democracy was signed on May 14, 2006, in London by major political parties as a response to the military rule of General Pervez Musharraf. Its purpose was to foster democratic principles and to safeguard against the misuse of power by unelected bodies, including the military and judiciary.

Furthermore, JUI-F chief praised all political parties, including the PTI, for their roles in facilitating the successful passage of the bill.

Rehman remarked, “The discussions we are having and the amendments we are considering stem from concerns regarding Supreme Court judges seeking extended terms. Upon learning of these developments, I raised the issue in the assembly and advocated for a constitutional amendment to prevent any conflict between the legislature and judiciary.”

He noted his commitment to the Charter of Democracy, which symbolises a collective agreement. “It called for the establishment of a constitutional court, and we have upheld our commitment to it, even as divisive resolutions have emerged in various forums.”

Rehman stated that the Constitution would remain a steadfast pillar, regardless of the ever-changing political environment. “These amendments reflect the commitments made between the nation and the provinces,” he stated.

He highlighted the sacredness of the Constitution, asserting that “the more revered it is, the more difficult it becomes to amend.” This, he explained, underscores the need to maintain constitutional integrity amidst political fluctuations.

Rehman further revealed that while the parties initially agreed on 65 clauses, extensive discussions led to the finalization of 22 clauses.

Addressing the PTI's concerns and Imran Khan’s imprisonment, he remarked, “The leader of the PTI is currently in jail under dire circumstances; such news is unacceptable.” He condemned the harsh treatment of any political leader, adding, “Had I anticipated the fate that awaited Imran Khan, I would have spoken out against it at the time.”

He also acknowledged attempts to create division within the opposition, asserting, “I have worked tirelessly to ensure unity among opposition parties and between the government and the opposition.”

Rehman reflected on the challenges faced, noting, “Despite numerous discussions with stakeholders, we could not agree on the formation of the courts. This is a democracy, not a dictatorship. We have accomplished the extraordinary despite significant difficulties.”

Moreover, Muttahida Qaumi Movement-Pakistan (MQM-P) leader Dr Farooq Sattar expressed that Pakistan's political, judicial, and democratic journeys have not always been characterised by noble intentions. “We all have erred, leading to political crises and conflicts between institutions,” he stated.

“While some of the core principles within the 26th Constitutional Amendment may make the MQM, its members, and its voters vulnerable, we choose to prioritise the greater good of the country,” Sattar continued. He asserted that such dedication enables the government to navigate the populace through confusion and uncertainty.

PTI Chairman Barrister Gohar Ali Khan took the floor next, voicing strong opposition to the recent constitutional amendments in alignment with his party's stance.

“They are not seeking a constitutional court; rather, they want a court that lacks independence,” he asserted. “This marks a dark day for the judiciary and the legal system.”

Khan explained that while the PTI had participated in the committee addressing parliamentary issues alongside the Maulana, he said, “I want to state clearly that we have not consented to a single word of this document, as we deem it illegitimate.”

Akhtar Mengal calls upcoming constitutional amendment a 'circus' in Parliament

BNP-M leader Akhtar Mengal has mocked the upcoming session in Pakistan's parliament, referring to it as a "circus."

Speaking informally to reporters at the Parliament House, Mengal said his party has lost contact with its senators. "We are here to find our senators. We've checked their lodges, but they are not there," he stated.

Mengal speculated that his party’s two senators might be at Jati Umra, Bilawal House, or Aabpara, adding, "But they certainly can’t be in Bani Gala."

The comments came as Pakistan's federal cabinet, chaired by Prime Minister Shehbaz Sharif, approved the draft of the 26th constitutional amendment.Additionally, JUI-F leader Maulana Fazlur Rehman has assured the government of his party’s support for the amendment.

Speaking to the media outside Parliament House, Mengal stated, "What you have witnessed today is a disgraceful joke, played with the country’s parliament and constitution."

He questioned the motive behind the amendments, asking, "Which forces are being appeased by these changes? Will these amendments improve Pakistan’s economic situation? Will they address the longstanding injustices faced by the smaller provinces?"

Mengal also accused political parties and intelligence agencies of working tirelessly to safeguard their own political interests. "Day and night efforts were made to save their politics," he remarked.

The BNP leader highlighted his party’s commitment to political engagement within the framework of the constitution but expressed frustration over being marginalised, leading him to resign from his seat.

However, he added, "I never closed the doors of communication."

Mengal alleged that BNP senators were pressured regarding the amendments and revealed that the husband of one of their female senators had been abducted. "Was the 1973 Constitution created by Zulfikar Ali Bhutto for this?" Mengal questioned.

Following weeks of upheaval, the coalition government on Sunday finally passed the controversial 26th Constitutional Amendment Bill in the Senate, hours after it was approved by the federal cabinet. The bill is now expected to be passed by the National Assembly to enact it into law.

The bill, dubbed the Consti­tutional Package, proposes a set of constitutional amendments, including but not limited to the tenure and appointment of the Chief Justice of Pakistan (CJP) and the evaluation of judges’ performances. A special parliamentary committee formed last month — which had representation of all parties, including the PTI — had been discussing various proposals after initial attempts to bulldoze it through Parliament failed.

The latest version of the bill received the nod from all political parties, including the PTI — which, however, chose not to participate in the voting process.

But what do these amendments mean for the independence of the judiciary in Pakistan. We asked lawyers for their two-cents.

Barrister Asad Rahim minced no words about the implications of the amendments on the judiciary’s independence. “The post-Musharraf consensus is officially over. The 26th Amendment is the biggest reversal for judicial independence in three decades,” he said.

“Appointments of judges have been handed back to the executive, which — as our history is witness — should have no business in such a selection.

“The method for handpicking the Chief Justice of Pakistan, among a list of three, will ensure a game of thrones every few years, thus wrecking a system that was until now immune to such intrigue,” he argued.

“Judges that were confirmed as future chief justices as late as yesterday will likely retire before ever making it, in favour of a system that will naturally prefer pliant or partisan candidates.

“Taken together, the 26th Amendment has dealt a body blow to Pakistan’s democracy and its constitutional order,” he lamented

For lawyer Moiz Jaferii, the current draft being tabled “is clearly a climb down from the first attempt at steamrolling through an entirely separate apex court and leaving the Supreme Court supreme in name only.”

He added, however, that “it still suffers from the same basic problem: the idea of the executive picking a chief justice and a parliamentary committee determining which superior court judge can hear constitutional matters are both direct attacks on judicial independence.

“They suffer from the same flaw that the original amendment did, in that they bring the pillar of the judiciary into a measure of subservience to the legislature and the executive.

“Where the first amendment draft spoke of the first chief justice to be appointed by the prime minister, the intervention of a parliamentary committee is now to be a continuous process. These Constitution benches and the picking of judges from within the superior courts if they are deemed worthy are a separate court in all but name. The designs behind them are little more than an attempt at bringing independent judges to heel.

“The manner in which this amendment has been attempted and today finally likely to be passed is a story of malice in itself — the threat of brute or brutal force plain for all to see.

“Championed by politicians in the name of parliamentary supremacy, it is clear to everyone where the actual interest lies.

“An election has been stolen. There is a government crowned with an illegitimate mandate. The Constitution must now pay the price lest the right to that crown be fairly adjudicated.”

According to lawyer Rida Hosain, “the fundamental problem with the previous drafts, and the current one, is the obvious aim to capture an independent judiciary.”

The CJP is to be appointed from a panel of the three senior most judges by a parliamentary committee. The government commands the majority in the parliamentary committee, and the government will have a majority say in the appointment of the CJP, she explained, adding that the government is a party before the Supreme Court. “A litigant (such as the government) cannot choose the head of the institution where it will appear as a party.”

Furthermore, she added, “a commission that includes government representatives will ‘evaluate’ the performance of superior court judges. Allowing government representatives to evaluate judicial performance is tantamount to giving the government the right to punish and reward judges. The government may render an adverse evaluation to target a judge that has given decisions against them.”

“The amendments are a huge blow for judicial independence. The professed aim of the amendments is to ‘depoliticise’ the judiciary. In fact, the amendments do the exact opposite. The government has effectively inserted itself into:

“This is not depoliticising; this is an attempt to exert control and influence over the superior judiciary. An attack on judicial independence is an attack on fundamental rights — a judiciary that is not independent cannot dispense justice without fear or favour. This impacts all citizens,” she stressed.

“The proposed Constitutional Amendment betrays the government’s desire to emasculate the judiciary by giving the government’s members a majority on the judicial commission,” said lawyer Mirza Moiz Baig. “Given that the reconstituted judicial commission will now also determine the composition of the constitutional benches, the Amendment effectively seeks to control which judges will hear cases involving the government.

“Such concerns are further aggravated by the stipulation that the CJP will be selected from a panel of three by a parliamentary committee with proportionate representation.

“The government of the day would, thus, have a majority on not only the judicial commission selecting judges to the superior judiciary but also on the parliamentary committee selecting the CJP.”

According to lawyer Basil Nabi Malik, “the amendments are quite diluted when compared to the initial drafts that had been circulating.

“This draft, compared to the earlier ones, is more workable,” he said, adding however, that there still remain certain concerns which require redressal.

“Firstly, the role of the special parliamentary committee shall be controversial, especially its ability to choose a CJP from the top three judges. Secondly, the disconnect of the Constitution benches from the CJP shall cause administrative issues, and shall act as a divide in the unity of the institution.

“There shall arise several questions as to the remaining authority of the CJP, and his ability to martial his justices in times of crisis,” he said.