Parliament passed the 26th Constitutional Amendment Bill 2024 with a two-thirds majority. The government required to secure 224 votes and it managed to secure 225 votes as majority of the opposition members staged a walk out. After being passed by the Parliament, presidential assent was rendered to the 26th Constitutional Amendment. The two important articles which are amended under the 26^th Constitutional Amendment are regarding the appointment of judges, i.e. Article 175A and Article 179.

According to new law, the Chief Justice of Pakistan will be selected from among three senior judges instead of the previously followed seniority principle. A twelve-member parliamentary committee will decide the chief justice’s name with a two-thirds majority. The name will then be sent to the Prime Minister, who will forward it to the President for consent. In case the selected judge refuses, the next most senior judge’s name will be considered. The term for the Chief Justice will remain for three years or as late as reaching the retirement age of 65. Following the passage of the 26th Amendment, the top judge is to be appointed on the advice of the Special Parliamentary Committee from amongst the three most senior Supreme Court (SC) judges.

The most number of amendments were made to Article 175A, which states with the procedure of appointment of judges to the SC, high courts and the Federal Shariat Court (FSC). Under amendments to clause 3 of Article 175A, rather than the President appointing the “most senior judge of the SC” as the Chief Justice of Pakistan (CJP), the top judge will directly “appoint on the suggestion of the Special Parliamentary Committee (SPC) from amongst the three most senior” SC judges. The committee, comprised for the same purpose, shall send the name of the appointee to the Prime Minister who shall forward the same name to the President for the appointment.

Earlier, under Clause 8 the Judicial Commission of Pakistan (JCP) may send its selections for each vacancy of SC, high court and FSC judges to an eight-member parliamentary committee. This committee then would send the nominations to the Prime Minister who would forward it to the President. Clauses 9, 10, 11, 12, and 13, which describe to the old eight-member committee, will be dismissed. Under an amendment to the clause, now the appointment to judges is directly to the Prime Minister and then president.

As the SPC shall comprise twelve members, according to a new clause 3A, with eight from the National Assembly and four from the Senate. When the National Assembly is not in session, the committee will consist only of Senate members, and the provisions will implement correspondingly. Under the Clause 3B, parliamentary parties will have proportional voting on the committee, nominated by their leaders, with the chairman informing the members. Moreover, Clause 3C requires the committee to send nominations by a two-thirds majority within 14 days before the Chief Justice’s retirement, or within three days for the first nomination after the 26^th Constitutional Amendment. Clause 3D clarifies that decisions by the Committee cannot be canceled due to vacancies. Clause 3E orders in-camera meetings with records maintained, and clause 3F excludes the committee from Article 68, which bounds lawmakers from discussing judges’ conduct. Clause 3G authorizes the committee to make its procedural rules. Clauses 15, 16, and 17 of Article 175A, previously similar to clauses 3E, 3F, and 3G, will be excluded.

Another important amendment related to the age and retirement of CJP is an Article 179 which states that a SC judge will stay in office as late as they turn 65 years old, until they choose to resign or are dismissed according to the rules of the Constitution. For the CJP, their term will be restricted to three years. Although the CJP has not till turned 65, they will retire after ending three years as Chief Justice, unless they resign, reach the age of 65, or are removed, whichever occurs first. Once their three-year term is over, the CJP must retire, even if they have not reached the maximum age of 65.

President Zardari appointed Justice Yahya Afridi as the CJP under clause 3 of Article 175A pursue with Articles 177 and 179 of the Constitution, according to a notification issued by the Ministry of Law and Justice on 23^rd October. Previously, the President used to appoint the most senior judge of the SC as the CJP, according to which senior most judge Mansoor Ali Shah was lately set to presume the place. Justice Afridi is the third judge on the SC seniority list, with Justice Munib Akhtar being the second most senior judge among those considered by the SPC. The committee sent its suggestion for Yahya Afridi to Prime Minister Shehbaz Sharif, which was then approved by the President Zardari.

This approach of appointing the country’s top judge has been monopolized for the first time after the implementation of the controversial 26th Constitutional Amendment Bill. As per this amendment, in case the first nominee refuses, one judge from the other two shall be nominated. If they too refuse, the job may be granted to the third judge. And in case all three decline, the next in the seniority line after the top three can also be brought into assertion.

The 26th Constitutional Amendment has revised the procedure for appointing Pres, shifting the decision from a seniority-based approach to a parliamentary committee. This new system highlights cooperation between the government and judiciary but may introduce political judgements into judicial appointments. Justice Yahya Afridi’s latest appointment marks the first application of this amended method.