Govt rushes bills in NA, Senate on strength of Supreme Court judges, 5-year term of armed forces’ chiefs

The National Assembly on Monday passed six bills, including one seeking an increase in the number of Supreme Court judges and another related to the extension of the terms of armed services chiefs, amid deafening protest by the opposition.

A few hours later, the Senate also passed the amendment bills. If President Asif Ali Zardari signs off on them, the changes — including to length of tenure (five years instead of three) as well as period of extension and reappointment (five years instead of three) — would apply to all current armed forces chiefs.

The six bills passed

• The Supreme Court Number of Judges (Amendment) Bill, 2024
• The Supreme Court Practice and Procedure (Amendment) Bill, 2024
• The Islamabad High Court (Amendment) bill, 2024
• The Pakistan Army (Amendment) Bill, 2024
• The Pakistan Air Force (Amendment) Bill, 2024
• The Pakistan Navy (Amendment) Bill, 2024

The first bill, related to the increase in the number of top court judges, was presented in the NA by Law Minister Azam Nazeer Tarar, who said that the government had proposed increasing the number of judges from 17 to 34.

According to the Supreme Court (Number of Judges) Act, 1997, “the [maximum] number of Judges of the Supreme Court of Pakistan other than the Chief Justice shall be sixteen.”

The maximum number of Judges of the Supreme Court of Pakistan other than the Chief Justice shall be up to thirty-three, the proposed bill read.

“This amendment will increase the number of judges in the Supreme Court up to 34, so that the backlog of cases can be cleared, and that after the 26th Amendment, we can have judges to form the constitutional benches,” Tarar said.

“Our bar lobbies and the SCBA (Supreme Court Bar Association) have been recommending this for a while now so that the four-bar court registries in Karachi, Quetta, Peshawar, and Lahore can relieve their thousands of pending cases. This number has been left open for the judicial commission,” the minister went on to say.

Soon after the law minister presented the bill in the assembly and finished his speech, voting on the bill was carried out despite the opposition fiercely protesting.

The proposed amendments to the Supreme Court (Practice and Procedure) Act, 2023, expanded the existing act to include additions made in the 26th Amendment, such as the introduction of constitutional benches.

The bill sought to add Article 191A of the Constitution — the creation of constitutional benches — to the preamble. The preamble in the 2023 act read: “[…] Article 191 of the Constitution provides that subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Supreme Court.”

Additionally, an amendment to sub-section (2) of Section 1 was proposed to ensure that the act came into force at the same time as the Constitution (Twenty-sixth Amendment) Act, 2024.

Moreover, the bill sought to expand subsections (1) and (2) of Section 2 to include the constitutional benches. According to sub-section (1), “Every cause, appeal or matter before the Supreme Court shall be heard and disposed of by a bench constituted by the Committee comprising the chief justice of Pakistan and two next most senior Judges, in order of seniority.”

This committee would be expanded to include, “The most senior judge of the constitutional benches” in the proposed bill. Conditions were included in case the seniormost judge on the constitutional bench had not been nominated — in which case the chief justice and second-most senior judge would make up the committee — and that the chief justice can nominate any Supreme Court or constitutional bench judge “if a member declines to sit on the committee”.

The bill would also insert a new section, Section 2A, into the existing act, which outlined the practice and procedure of the constitutional benches. “Where a question arises as to whether a cause, matter, petition, appeal or review application … is to be heard and disposed of by a Constitutional Bench or another Bench of the Supreme Court, the committee constituted under clause (4) of Article 191A of the Constitution shall … determine the question…

“… If it decides that a matter falls within clause (3) of Article 191A of the Constitution, [it can] assign it to a Constitutional Bench for hearing and disposal … [if it] does not fall within clause (3) of Article 191A of the Constitution, [it can] send it to the Committee constituted under section 2 for disposal by another Bench.”

The bill adds that the registrar of the Supreme Court shall provide the “requisite administrative and secretarial support to the constitutional benches” and subject to the availability of judges, constitutional benches shall comprise an equal number of judges from each province.

The 26th Constitutional Amendment, also known as the Constitutional Package, stripped the Supreme Court’s suo motu powers, set the chief justice of Pakistan’s (CJP) term at three years and empowered the prime minister to appoint the next CJP from among the three most senior SC judges.

It also enabled the creation of constitutional benches in the Supreme Court through the newly inserted Article 191A.

The Amendment was passed by the Senate with a two-thirds majority on October 20, with an equivalent majority by the National Assembly in the wee hours of October 21.

Amendment to acts related to armed forces

Defence Minister Khawaja Asif also tabled the amendment bills, aiming to extend the tenure of the chief of army staff, chief of naval staff, and chief of air staff from three to five years.

The government brought all the bills in the NA session through a supplementary agenda.

According to the Army Act Amendment Bill, 1952, the rules of retirement of a general in the Pakistan Army will not apply to the army chief, who will continue to work as a general in case of appointment, re-appointment or extension.

Apart from this, the House also approved the Pakistan Air Force Act, 1953 and the Pakistan Navy Amendment Bill, 1961, by a majority vote.

According to the statement of objects and reasons, “The purpose of these amendments is to make consistent the Pakistan Army Act, 1952 … The Pakistan Navy Ordinance, 1961 … and The Pakistan Air Force Act, 1953 … with the maximum tenure of the Chief of the Army Staff, the Chief of the Naval Staff and the Chief of the Air Staff and to make consequential amendments for uniformity in the aforementioned laws.”

The proposed bill to amend the Army Act, the Pakistan Army (Amendment) Act, 2024, aims to extend the tenure of the Chief of Army Staff from three to five years.

“In the said Act, in section 8A, in sub-section (1), for the expression ‘three (03)’ the word ‘five (05)’ shall be substituted,” the bill said.

Sub-section 1 of Section 8A states that “the President shall, on the advice of the Prime Minister, appoint a General as the Chief of the Army Staff, for a tenure of three (03) years.”

Similarly, the bill aims to increase the length of time the service chief can be reappointed or have their tenure extended to five years, instead of three as outlined in Section 8B.

Section 8B of the Army Act reads as follows: “The President, on the advice of the Prime Minister, may reappoint the Chief of the Army Staff for additional tenure of three (03) years, or extend the tenure(s) of the Chief of the Army Staff up to three (03) years, on such terms and conditions, as may be determined by the President on the advice of the Prime Minister, in the national security interest or exigencies, from time to time.”

“In the said Act, in section 8B, in sub-section (1)- 10 for the expression ‘three (03)’, occurring twice, the expression ‘five (05)’ shall be substituted,” the 2024 bill read.

An amendment was also proposed to Section 8C, which deals with the retirement age and service limits of service chiefs.

Section 8C states, “The retirement age and service limits prescribed for a General, under the Rules and Regulations made under this Act, shall not be applicable to the Chief of the Army Staff, during his tenure of appointment, reappointment, or extension, subject to a maximum age of sixty-four (64) years. Throughout such tenure, the Chief of the Army Staff shall continue to serve as a General in the Pakistan Army.”

The amendment bill has made a substitution to Section 8C, removing the 64-year age limit. The proposed amendment reads as follows: “The retirement age and service limits prescribed for a General, under the Rules and Regulations made under this Act, shall not be applicable to the Chief of the Army Staff, during his tenure of appointment, reappointment and/or extension. Throughout such tenure, the Chief of the Army Staff shall continue to serve as a General in the Pakistan Army.”

NA, Senate session adjourned

After passing the bills, the NA speaker adjourned the meeting of the National Assembly till 11am tomorrow.

Meanwhile, the Senate’s session was adjourned indefinitely.

PTI condemns passage of bills, stages protest

The opposition PTI took a strong exception to the passage of the bills in the NA and continued chanting slogans throughout the session.

PTI Chairman Barrister Gohar Ali Khan, speaking outside the parliament, decried the passage of the bills.

“Today, democracy has been changed into a monarchy”, he said.

PTI’s Leader of the Opposition in the National Assembly, Omar Ayub Khan, said, “This Form 47 Shehbaz Sharif regime modifying the service chiefs’ tenure is not a good thing for the country and the armed forces.”

The move was also condemned by other political parties, including the Jamaat-i-Islami.

In a post on X, JI Senator Mushtaq Ahmad Khan said, “The path for legal martial law has been paved in Pakistan,” he said.

Lawyers’ reactions

According to lawyer Rida Hosain, “the law minister saying that increasing the number of SC judges will address the pendency of cases, [but] it was the same absurd narrative being furthered at the time of passing the 26th Amendment.”

Both the 26th Amendment and the new law have nothing to do with pendency. Eighty-two per cent of pending cases are at the district judiciary level, and no steps have been taken to address this, she added.

“The government’s focus at the moment is to exert control over the SC and the attempt to cover this under the guise of addressing pendency is not convincing,” Hosain told Dawn.com.

Meanwhile, Barrister Asad Rahim Khan said: “For an executive so bent on judicial capture, the most logical step after purging the court would be to pack it. We are seeing that now through this bill, which seeks to apply seasoning to the awful 26th Amendment.

“By itself, an increase in the number of judges isn’t wrong, though it is, as usual, the wrong diagnosis: while our number of judges may be few, the far greater problem is our scale of frivolous litigation, clogged up further by delay and endless appeals.

“To pretend that any of these problems are on the government’s mind, however, would be to take away from its ongoing project: setting judicial independence back by at least three decades, arresting any questions that arise as to its own legitimacy, and getting to handpick its chosen favourites as the final interpreters of our constitution.”

Lawyer Abdul Moiz Jaferii told Dawn.com: “Subjugating the judicial branch through a coerced amendment to the constitution clearly wasn’t enough, so we’re now going to pack the SC right after we’ve usurped the right to elevate judges.

“This is the government making its newly engineered power to scrutinise judges count. Throw enough people up at the SC some might actually stick. This government has done everything it absolutely can to divide the SC.

“Some actions of the new CJP raised doubts about whether that divide actually took place or whether it was deep enough between judges. So just to make sure now they’re going to dilute the SC.

“This is generational damage, inflicted from momentary positions of strength. To protect election theft, this government is willing to burn the house down.

Jaferii went on to say that “as far as the Army Act amendments are concerned if you were to ask for an example of person-specific legislation; you would be hard-pressed to give a more complete example than this amendment.”

Lawyer Jibran Nasir said that “though the plans of forming a separate Federal Constitutional Court could not come to fruition the parliament has effectively created the post of a second chief Justice in the Supreme Court and the high court.

“The head of the Constitutional Benches which is to be selected by the now executive heavy Judicial Commission will not just be responsible for hearing cases but would also be empowered along with two most senior judges of the Constitutional Bench to form further Benches to hear matters under Article 184, 185(3) and exercise jurisdiction under Article 186.

“The appointment of new judges to the Supreme Court also have to be through the same executive heavy Judicial Commission. Even if the two members of the opposition in the Judicial Commission oppose nominees of the Executive, the Govt would only need one Judge of the SC to give his nod in order to prevail.

“The timing of the proposal to increase the number of judges appears to be aimed at not only exercising influence in case of any full court hearing but also provide the new proposed Judges of the Constitutional Benches to formulate further benches of their choice and convenience which exercise can now be done without needing the approval of the CJP,” Nasir said.

Additional reporting by Nadir Guramani