MPs seek to rein in 'independent' judiciary

The government is all set to table a constitutional amendment bill in parliament on Friday as major parliamentary parties have reached a consensus on 24 proposed clauses that will, inter alia, pave the way for setting up of a constitutional division in the Supreme Court, allow dual nationals to contest elections and provides constitutional immunity to the cabinet and the prime minister when advising the president.

In addition, the proposed bill for the 26th constitution amendment shows that the chief justice of Pakistan (CJP) will be appointed for a three-year term; the chief justice will be appointed from amongst the three most senior judges in the Supreme Court on the recommendations of a special parliamentary committee; the Supreme Court will have the powers to transfer matters from one high court to another; and the vote of a defected member under Article 63-A will be counted.

Moreover, the chief election commissioner (CEC) and a member of the Election Commission of Pakistan can continue to hold the office for 90 days or until their successor enters upon the office. Surprising as it may seem, the proposed amendment in Article 215 states that "a person who has held office as the Commission or a member may, by a resolution passed by each House by the votes of majority of the members present and voting, be reappointed to the same office for another term."

Apparently being tired of the courts' practice of providing relief to the applicants on things that weren't even prayed for, the proposed bill has barred the apex courts from exercising jurisdiction beyond the contents of the applications.

With proposed amendment in Article 184, the bill has added a proviso 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 motu exercise of jurisdiction beyond the contents of any application filed under this clause." Similar changes have been proposed for high courts under Article 199.

The amendment has come as the PML-N has always maintained that the top court's bench, which disqualified PML-N supremo Nawaz Sharif in 2017, had pulled out an Iqama – a work permit – from the Panama Papers scandal. Also, the incumbent ruling parties have vociferously opposed a recent decision of a majority bench of the apex court in the reserved seats' matter because, as they say, it provided relief to PTI when it wasn't even present before the court or sought any relief from it.

A glance at the proposed 26th constitutional amendment bill shows that a new Article 191-A (Constitutional Division of the Supreme Court) shall be added. It states: "There shall be a Constitutional Division on the Supreme Court, in this Chapter referred to as the Constitutional Division, comprising such number of Judges and for such term, as may be determined by the Judicial Commission of Pakistan from time to time."

The constitutional bench will comprise equal number of judges from each province and only it will have the power to exercise SC's original jurisdiction under Article 184, appellate jurisdiction under Article 185 and advisory jurisdiction under Article 186 – the Article which enables the President to seek an 'opinion of the Supreme Court on any question of law which he considers of public importance.

The bench will not be less than three judges and it will be nominated by three most senior judges of the Constitutional Division. All petitions, appeals or review applications against judgments rendered or order passed pending before the Supreme Court forthwith stand transferred to the Constitutional Division and shall only be heard and decided by the benches constituted.

An amendment in Article 63 (disqualification for members of parliament) paves the way for dual nationals to contest polls as it adds the expression: "unless he renounces citizenship of such foreign State with ninety days of declaration of result of his election". Previously, Article 63(c) stated that a person shall be disqualified from being elected or chosen as a member of Parliament if "he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State".

Proposed amendment in Article 63A (disqualification on grounds of defection, etc.) says that the vote of lawmaker will be counted if given against the party directions. Amendment in Article 81 says that "any sum required to organize and conduct elections to the National Assembly, Senate, Provincial Assemblies and the local governments" shall be charged upon the Federal Consolidated Fund.

An amendment in Article 111 proposes that an advisor shall have the right to speak in provincial assembly and its committees. Proposed Article 175 says that a commission shall conduct an annual performance evaluation of judges of the high courts. Proposed Article 177 and 193 say that a person shall not be appointed as judge of SC and high court unless he is a citizen of Pakistan. The age limit for high court judge is set at 40 years.

Amendments have also been proposed in Article 243 (command of Armed Forces). A new proposed clause states any law or a provision thereof, specified in Eight Schedule, as in force immediately before commencement of the 26th constitutional amendment shall not be amended, repealed or altered un-less specifically authorized by an amendment in this clause. It then proposes to add Eight Schedule, which states, laws and provisions to be amended in the manner provided in Article 243(5).