21/10/2024
Let’s go through each section of the Constitution (Twenty-sixth Amendment) Act, 2024 in detail. These amendments modify significant aspects of Pakistan’s Constitution, primarily concerning environmental rights, judicial reforms, and financial governance.
1. New Article 9A - Right to a Clean and Healthy Environment
This amendment introduces a new Article 9A that guarantees every person the right to a clean, healthy, and sustainable environment. This places a constitutional obligation on the government to ensure that environmental protection becomes a fundamental right, alongside other human rights. This provision could serve as a basis for environmental legislation, enforcing regulations, and encouraging sustainable development practices.
Importance:
Marks environmental sustainability as a human right.
Creates a legal basis for citizens to challenge environmental degradation in courts.
2. Amendment to Article 38(f) - Elimination of Riba (Usury)
The amendment sets a deadline for the elimination of riba (interest/usury) in financial transactions by January 1, 2028. The Constitution of Pakistan, which is based on Islamic principles, has long intended to eliminate interest-based financial systems, as they are considered exploitative under Islamic law.
Importance:
Pushes Pakistan closer to an Islamic financial system.
Encourages economic reforms to transition to a riba-free economy.
Financial institutions will need to adapt to Shariah-compliant practices like profit-sharing models and interest-free loans.
3. Amendment to Article 48(4) - Presidential Advice by Cabinet
This change states that the advice given to the President by the Prime Minister or the Cabinet cannot be questioned in any court, tribunal, or other authority. This strengthens the executive’s discretion and limits judicial oversight over the internal processes of the executive branch.
Importance:
Strengthens executive authority.
Limits judicial scrutiny of executive decisions, potentially reducing checks and balances in government.
4. Amendment to Article 81 - Judicial Expenditure and Election Costs
This article broadens the categories of expenditures that are considered federal, adding the costs for organizing elections to the National Assembly, Senate, Provincial Assemblies, and local governments. It also includes financial provisions for the Judicial Commission of Pakistan and the Supreme Judicial Council.
Importance:
Ensures that the costs associated with elections are treated as a federal responsibility, securing the funds needed for democratic processes.
Strengthens judicial independence by ensuring funding for key judicial bodies.
5. Amendments to Article 175A - Judicial Appointments and Evaluations
This is one of the most significant changes. It revises the procedure for the appointment of judges to the Supreme Court and High Courts, introducing a more detailed and structured process. Notably, it introduces performance evaluations for High Court judges and provides a process for their removal if they are found to be inefficient.
Changes include:
Composition of the commission for judicial appointments, including the Chief Justice of Pakistan, senior judges, law ministers, attorneys, and parliamentarians.
A new system for nominating the Chief Justice of Pakistan from among the three most senior judges.
Performance evaluation of High Court judges by the Judicial Commission of Pakistan.
The commission can recommend removal of judges based on inefficiency after giving them a period to improve.
Importance:
Enhances accountability for judges.
Introduces a transparent and democratic process for selecting the Chief Justice and other senior judicial appointments.
Establishes checks on the judiciary’s efficiency and integrity.
6. Amendment to Article 177(2) - Appointment of Supreme Court Judges
This amendment revises the eligibility criteria for appointment as a judge of the Supreme Court. A candidate must either:
Have been a High Court judge for at least five years, or
Have been an advocate with at least 15 years of practice in a High Court and is also an advocate in the Supreme Court.
Importance:
Ensures that judges appointed to the Supreme Court have substantial judicial experience or extensive legal practice.
Emphasizes merit and legal expertise in the appointment process.
7. Amendment to Article 179 - Term of the Chief Justice of Pakistan
This amendment caps the term of the Chief Justice of Pakistan at three years, regardless of whether they reach the mandatory retirement age of 65 before their term ends.
Importance:
Limits the tenure of the Chief Justice, allowing for more regular turnover in leadership.
Prevents long tenures which could centralize power in the judiciary.
8. Amendment to Article 184(3) - Limits on Suo Motu Powers
The amendment restricts the Supreme Court’s use of suo motu powers, which allow the Court to take up cases on its own without a formal application. Under the new rule, the Court cannot exercise this power beyond the scope of applications submitted under this clause.
Importance:
Reduces the scope of the Court’s autonomous intervention in public matters.
Aims to prevent the judiciary from overreaching into matters without an explicit cause brought by citizens or institutions.
9. Articles 191A and 202A - Constitutional Benches
These new articles introduce the concept of Constitutional Benches in both the Supreme Court and High Courts. These benches will consist of judges specifically nominated to handle constitutional matters such as:
Original jurisdiction (cases involving disputes between governments).
Appellate jurisdiction in matters concerning constitutional interpretation.
Advisory jurisdiction (offering legal advice to the government).
The benches will be composed of senior judges from different provinces and will handle constitutional petitions.
Importance:
Specializes and streamlines the handling of constitutional issues.
Ensures that matters of national constitutional importance are handled by experts in the field.
Balances representation by including judges from different provinces.
10. Amendment to Article 209 - Supreme Judicial Council Reforms
This reform restructures the Supreme Judicial Council (SJC), which is responsible for investigating judges’ misconduct, inefficiency, or incapacity. The amendment makes the following changes:
The SJC will consist of the Chief Justice of Pakistan, two senior Supreme Court judges, and two senior High Court Chief Justices.
A clear procedure is outlined for inquiring into judges' conduct.
The SJC can recommend the removal of a judge if found incapable of performing duties or guilty of misconduct.
Importance:
Strengthens mechanisms for judicial accountability.
Introduces a more transparent and systematic process for dealing with complaints against judges.
11. Amendments to Articles 186A, 193, 199, 203C, and Other Judicial Reforms
Several other amendments refine the powers of the judiciary. For example:
Article 186A gives the Supreme Court the authority to transfer cases from one High Court to another or to itself if deemed in the interest of justice.
Article 193(2) revises the criteria for the appointment of High Court judges, requiring candidates to have at least 10 years of experience as an advocate or holding a judicial office.
Article 199 limits the High Court’s ability to exercise suo motu powers, similar to the change made in Article 184(3).
Importance:
These reforms ensure that experienced legal professionals are appointed to high judicial offices.
They also impose limits on the judiciary’s discretionary powers, aiming to focus the courts on cases brought by formal petitions.
Conclusion
The Constitution (Twenty-sixth Amendment) Act, 2024 introduces profound changes to Pakistan’s constitutional framework. By emphasizing environmental rights, judicial accountability, and transparency in judicial appointments, these amendments aim to modernize governance and create a more structured legal system. The introduction of specialized constitutional benches and performance evaluations for judges is a significant step towards a more accountable judiciary, while the elimination of riba and stronger presidential powers reflect Pakistan’s adherence to Islamic principles and stronger executive control.
