Explainer: What changes do the provisions in the 26th Amendment bring to the constitution?

A draft of the proposed Constitution (Twenty-sixth Amendment) Act, 2024 (the “26th Amendment”) has been circulating on social media platforms. This is an explainer for the public; its purpose is to spell out some of the most significant changes sought to be introduced in the Constitution.

• One of the key provisions of the 26th Amendment is the addition of a new right – the right to a clean and healthy environment. The right applies to all persons, not just citizens. Fundamental Rights provided by the Constitution are used as a benchmark by the courts to test the legality of written laws as well as executive actions.
• Article 63A was first introduced to curb floor crossing; put simply, if you voted contrary to directions of your party leadership in matters relating to the election of the Prime Minister/Chief Minister, votes of no confidence, and Money Bills etc. you were treated as a defector and the vote would not count. The proposed amendment provides that the vote of a defected member will be counted rather than disregarded.
• The 26th Amendment, while discussing amendment bills to the Constitution, states that no constitutional provision or amendment can be challenged in any court, including the FCC, the Supreme Court, or a High Court, on any ground whatsoever. Any contrary judgment or order will be void and of no legal effect. The Supreme Court of Pakistan, back in 2015 however, ruled that even a constitutional amendment can be struck down (i.e., declared unconstitutional and of no legal effect) if it violates the “salient features” of the Constitution. And what are the salient features as laid down by the Supreme Court? Democracy, parliamentary form of government and independence of judiciary.
• Another prominent feature of the 26th Amendment is the establishment of a new court, the “Federal Constitutional Court of Pakistan” (“FCC“), with a permanent seat in Islamabad. For all intents and purposes, this will be the top court in the land if the amendment goes through and will have the highest judicial body interpreting the Constitution. Its words will be the law. So, think of the FCC as essentially the same way as you have thought of the Supreme Court till now. The FCC will consist of a Chief Justice and other judges as may be determined by an Act of Parliament, or, until such time, as set by the President of Pakistan. The FCC ensures equal representation for all provinces.
• The first Chief Justice of the FCC will be appointed by the President on the advice of the Prime Minister, while the first judges of the FCC will be appointed by the President in consultation with the Chief Justice of the FCC. For future appointments of the Chief Justice of the FCC, the National Assembly Committee will recommend one of the three most senior judges of the FCC.
• For future appointments of judges of the FC, Judges of the FCC will be appointed by the Judicial Commission of Pakistan. In terms of eligibility criteria, the candidate must be a citizen of Pakistan and meet one of the following professional qualifications: (i) having served as a Judge of the Supreme Court, (ii) having been a High Court judge for at least five years, or (iii) having been an advocate of a High Court for at least 14 years and an advocate of the Supreme Court.
• Retirement age for judges of the FCC would be 68 years unless the judge resigns earlier or is removed. Judges of the Supreme Court who are appointed to the FCC shall serve for a fixed term of three years, regardless of their age. If such a judge is appointed as Chief Justice of the FCC, their term will also be three years, or until they reach 68 years of age, whichever comes first. Once the Chief Justice’s three-year term ends, they will retire, regardless of their age.
• FCC is the court that will hear petitions under Article 184(3). This will be its original jurisdiction. It will also have appellate and review jurisdiction. If the proposed amendment becomes the law, all petitions, appeals, and review pending in the Supreme Court against orders and judgments passed by the High Court under Article 199 of the Constitutional shall stand transferred to FCC and shall be decided by it.
• Executive and judicial authorities throughout Pakistan will be constitutionally required to act in aid of the FCC. This was a provision applicable to the Supreme Court earlier. This emphasizes the central role of a new court in Pakistan’s legal framework and ensures that other authorities must comply with its decisions.
• The judges of the Supreme Court will be appointed by the Judicial Commission of Pakistan. Regarding the appointment of the Chief Justice of the Supreme Court, the 26th Amendment establishes a National Assembly Committee comprising eight members, as far as practicable in equal proportion from each parliamentary party, nominated by the Speaker of the National Assembly. This Committee will, by a majority vote of its total membership, send a nomination from among the three most senior judges of the Supreme Court to the Prime Minister, within seven days prior to the retirement of the incumbent Chief Justice. The Prime Minister will then forward the name to the President for appointment.
• The Supreme Court retains appellate jurisdiction, but cases related to Article 199 (writ petitions) will now be handled exclusively by the FCC.

Appeals can be made to the Supreme Court in cases where:

1. The High Court has overturned an acquittal and sentenced someone to death or life imprisonment.
2. The High Court has withdrawn a case from a lower court and convicted the accused.
3. The High Court has punished someone for contempt of court.

Appeals involving disputes over a minimum value, currently set at 50,000 rupees, can also be made to the Supreme Court.

In other cases, not covered above, an appeal to the Supreme Court requires the Supreme Court’s permission (leave) to proceed.

• If a case involves significant questions of constitutional interpretation, it will be transferred to the FCC. The FCC will decide whether it or the Supreme Court has jurisdiction if there is any confusion.
• Appeals in the Supreme Court must be decided within 12 months of filing. Appeals pending before the 26th Amendment must be decided within 24 months.
• Decisions of the Supreme Court are binding on all courts except the FCC. This creates a hierarchical structure where the FCC holds the highest interpretative authority on constitutional matters.
• The 26th Amendment lowers the minimum age for the appointment of a High Court judge from 45 to 40 years. Furthermore, one-third of the nominees will be from the district judiciary.
• Furthermore, the 26th Amendment also tasks the Commission to conduct annual performance evaluation of the judges of the High Courts. Unsatisfactory performance can result in a performance improvement plan being given to the judge and if this does not lead to improved performance, Supreme Judicial Council can look into the matter.
• A High Court cannot take suo motu actions (i.e., act on its own initiative) under Article 199. This significantly limits the High Court’s power to intervene without a formal petition. Further, a provision has been suggested that prevents the High Court from passing orders related to national security matters—limiting the judiciary’s role in certain cases.
• Previously, the President could transfer a judge from one High Court to another only with the judge’s consent. Now, such transfers will occur based on recommendations from the Judicial Commission of Pakistan.
• The 26th Amendment redefines the structure and functioning of the Supreme Judicial Council of Pakistan. The Council will now include the Chief Justice of the FCC, the Chief Justice of the Supreme Court, the next most senior Judge of the FCC, and the two most senior Chief Justices of High Courts. The inter se seniority of High Court Chief Justices will be determined by their appointment dates.
• Decisions will be made by a majority opinion, and the Council’s report to the President will reflect the majority view.
• The Council can inquire into the conduct or capacity of a Judge (of the FCC, SC, and HC) on its own motion, based on reports or information received from the Commission, or on the direction of the President. If, after inquiring into this matter, without unnecessary delay, the Council reports to the President that a Judge is found incapable of properly performing his/her duties because of physical or mental incapacity, or inefficient in the performance of the same, or guilty of misconduct, the President may remove them from office.
• The Council will issue a code of conduct for Judges of the FCC, the Supreme Court, and High Courts.
• The 26th Amendment stipulates that Commissioners and members will continue to hold office until their successors are appointed, even after their term expires. Further, reappointment of Commissioners or members for additional terms can be done by resolution passed by both Houses of Parliament.
• Appointment, reappointment, extension, and removal of service chiefs will follow laws related to the Armed Forces. These provisions will not be amended unless expressly authorized by an amendment in the Constitution.
• Local taxes, fees for services, cess, charges, and tolls in cantonment areas have now been included in the Fourth Schedule (Federal Legislative List), granting Parliament the authority to legislate on these matters.

The writers are associates at the Lahore-based law firm Axis Law Chambers