Text of proposed constitutional package

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We are sharing with you the complete text of the proposed constitutional package so that you may also be able to examine it according to your perception and further be able to use it for research and reference usage.

 

You might also like to see our previous blog post HRCP’s study of the proposed constitutional packagefor our comments and input.

 

TEXT OF PROPOSED CONSTITUTIONAL PACKAGE

 

POINTS FOR DECISION

The provisions of the following Articles are subject to Decision after consu1tation with the Coalition Partners

(1) Tenure; of Judges (Article 179 and 195)

(2) Article 243 and 243A.

(3) Restoration of Judges (270CC)

(4) Validation of Ordinances (Article 270AAA)

Draft

Note: This is not a Sacrosanct Document and can be changed or altered  by Coalition Partners in the Parliament and others.

A Bill further to amend the Constitution of the Islamic Republic of  Pakistan Whereas it is expedient further to amend the Constitution of the  Islamic Republic of Pakistan for the purposes hereinafter appearing;

It is hereby enacted as follows:-

1.         Short title and commencement.- (1) This Act may be called the  Constitution (Eighteenth Amendment) Act, 2008.

(2)        It shall come into force at once.

2.            Amendment of Article 1 of the Constitution.- In the Constitution of  the Islamic Republic of Pakistan, hereinafter referred to as the

Constitution, in

Article 1, in clause (2), in paragraph (a), for the words “North West  Frontier” the word “Pakhtunkhawa” shall be substituted.

3.            Amendment of Article 6 of the Constitution.- In the Constitution,  for Article 6, the following shall be substituted, namely:-

“(1) Any person who abrogates, subverts, suspends or holds in abeyance  or attempts or conspires to abrogate, subvert, suspend or hold in  abeyance the Constitution by use of force or show of force or by other  un-constitutional means shall be guilty of high treason.

(2) Any person aiding or abetting or any person or any court including  a High Court and the. Supreme Court condoning, affirming or validating  the acts mentioned in clause (1) or violating oath of office specified  in the Third Schedule shall likewise be guilty of high treason.

(3) Parliament shall by law provide for the punishment of persons found  guilty of high treason.

4.            Amendment of Article 41 of the Constitution.- In the Constitution in Article 41,-

(i)         in clause (3), the words, brackets and figures “after the  expiration of the term specified in clause (7)” shall be omitted; and (ii)  clauses (7), ( 8 ) and (9) shall be omitted.

5.            Amendment of Article 44 of the Constitution.- In the Constitution,  in Article 44, for clause (2) the following shall be substituted,  namely:-

“(2) Notwithstanding anything contained in the Constitution a person  holding the office of the President shall be eligible for re-election to  that office, but no person shall hold that office for more than two  terms.”.

6.            Amendment of Article 45 of the Constitution.- In the Constitution,  in Article 45, after the word “authority” at the end, the words “or  indemnify any act whatsoever” shall be added.

7.            Amendment of Article 48 of the Constitution.- In the Constitution,  in Article 48,- (i) in clause (1),-

(a) after the word “act” the words “on and” shall be inserted and after  the word “Minister” at the end, the words and commas “and such advice  shall be binding on him which shall be returned to the Cabinet or the  Prime Minister as the case may be, within fifteen days” shall be added;

and

(b) in the proviso, after the word “shall” the commas and words “within  seven days” shall be inserted. (ii) in clause (5), for the words “his  discretion” the words “after consultation with the Speaker of the  National Assembly and the Chairman, Senate” shall be substituted and in  paragraph (b) of said clause before the word “Care-taker” the word “neutral” shall be inserted; and (iii) in clause (6), for the commas and words  “,the President, in his discretion, or on the advice of the Prime  Minister,” the words “Parliament in joint sitting” shall be substituted and  for the word “President” occurring for the second time, the word  “Parliament” shall be substituted.

8.            Amendment of Article 50 of the Constitution.- In the Constitution,  in Article 50, the words “the President and” shall be omitted.

9.            Amendment of Article 55 of the Constitution.- In the Constitution,  in Article 55, in clause (2), for the word “one-fourth” the word  “one-sixth” shall be substituted.

10.            Amendment of Article 58 of the Constitution.- In the Constitution,  in Article 58, clauses (2) and (3) shall be omitted.

11.            Amendment of Article 59 of the Constitution.- In the Constitution,  in Article 59,- (a) in clause (1), after the word “hundred” the words “and five” shall  be substituted; and

(b) in paragraph (e),- (i) for the full stop at the end, the semicolon  and word “;and” shall be substituted; and (ii) I after paragraph (e),  amended as aforesaid, the following new paragraph shall be added,  namely:- (f) four seats for non-Muslims’. one, each from each Province to be  elected by the respective Provincial Assembly and one’ seat for Federal  Capital to be elected by the members of the Senate.

(c) in clause (3), after the proviso at the end, the following

Explanation shall be added, namely:-

Explanation:- “The amendments made in clause (1) by the Constitution  (Eighteenth Amendment) Act, 2008, regarding seats for non-Muslims shall  be effective from next election of the Senate.”

12.            Amendment of Article 62 of the Constitution.- In the Constitution,  in Article 62, in paragraph (h), for the semicolon and word “; and ” a  full stop shall be substituted and paragraph (i) shall be omitted.

13.            Amendment of Article 63 of the Constitution.- In the Constitution,  in Article 63, in clause (1),- (a) in clause (d), the words “other than  an office declared by law not to disqualify its holder” shall be  omitted; (b) for paragraph (g) the following shall be substituted, namely:-

 “(g) he is propagating any opinion or acting in any manner, prejudicial  to the Ideology of Pakistan, or the sovereignty, integrity or security  of Pakistan, or defames or brings into ridicule any Judge of Supreme  Court or a High Court or Armed Forces of Pakistan other than the officers of Armed Forces holding civil posts”; and , (c) in paragraph (h),  after the word “force” the comma and the words’ “,unless a period of five  years has elapsed from the date of conviction” shall be added. (d) in  paragraph (i), after the word “turpitude”, the comma and words “,unless  a period of five years has elapsed from the date of his dismissal from  service” shall be added; (e) in paragraph G), after the word  “turpitude”, the comma and words “, unless a period of five years has elapsed  from the date of his removal or compulsory retirement from service” shall  be added; (f) paragraphs (m) and (P) shall be omitted; and (g) in  paragraph (r) for the semicolon and word “;or” a full stop shall be  substituted and thereafter paragraph “(s)” shall be omitted.

14.            Amendment of Article 70 of the Constitution.- In the Constitution,  in Article 70″.- (i) in clause (2), for the words and figure “referred  to a Mediation Committee constituted under Article 71 for consideration  and resolution thereon” the words “considered in joint sitting” shall  be substituted; and (ii) for clause (3), the following shall be  substituted, namely:-

“(3) If a request is made under clause (2), the President shall summon  joint sitting within thirty days; and, if the Bill is passed in the  joint sitting, with or without amendment, by the votes of the majority of  the total membership of the two Houses, it shall be presented to the  President for assent.”.

15.            Omission of Article 71 of the Constitution.- In the Constitution,  Article 71 shall be omitted.

16.            Amendment of Article 73 of the Constitution.- In the Constitution,  in Article 73, in clause (1), in the proviso, for the word “seven” the  word “fourteen” shall be substituted.

17.            Amendment of Article 75 of the Constitution.- In the Constitution  in Article 75, in clause ‘(I), for the word “thirty” the word “fifteen”  shall be substituted.

18.            Substitution of Article 90 of the Constitution.- In the  Constitution for Article 90, the following shall be substituted, name1y:-

“90.- The Federal Government.- (1) Subject to the’ Constitution, the  executive authority of the Federation shall be exercised in the name of  the President by the Federal Government, consisting of the Prime  Minister and the Federal Ministers, which shall act through the Prime Minister who shall be the Chief Executive of the Federation.

(2) In the performance of his function under the Constitution, the  Prime Minister may act either directly or through the Federal Ministers.

19.            Amendment of Article 91 of the Constitution.- In the Constitution,  in Article 91- (i) for clauses (2), (2A) and (3), the following shall be substituted, namely:-

“(2) The National Assembly shall meet on the thirtieth day following  the day on which a general election to the Assembly is held, unless  sooner sumn1oned by the President.

(3) After the election of the Speaker and the Deputy Speaker, the  National Assembly shall, to the exclusion of any other business, proceed to  elect without debate one of its Muslim members to be the Prime  Minister.

(4) The Prime Minister shall be elected by the votes of the majority of  the total membership of the National Assembly:

Provided that, if the number of votes secured by two or more members securing the highest number of votes is equal, further poll shall be held  between them until one of them secures a majority of votes of the  members present and voting: Provided further that, if the number of votes secured by two or more  members securing the highest number of votes is equal, further poll shall  be held between them until one of them secures a majority of votes of  the members present and voting.

(5) The member elected under clause (3) shall be called upon by the  President to assume the office of Prime Minister and he shall, before  entering upon the office, make before the President oath in the form set  out in the Third Schedule.

20.            Substitution of Article 95 of the Constitution.- In the  Constitution, for Article 95, the following shall be substituted, name1y:-

“95. Vote of no-confidence against the Prime Minister.- (1) A resolution for a vote of no-confidence moved by not less than twenty percent of  the total membership of the National Assembly maybe passed against the Prime Minister by the National Assembly.

(2) A resolution referred to in clause (1) shall not be moved in the  National Assembly unless, by the same resolution, the name of another  member of the Assembly is put forward as the successor.

(3) A resolution referred to in clause (1) shall not be voted upon  before the expiration of three days, or later than seven days, from the day  on which such resolution is moved in the National Assembly.

(4) A resolution referred to in clause (1) shall not be moved in the  National Assembly while the National Assembly is considering demands for  grants submitted to it in the Annual Budget Statement.

(5) If the resolution referred to in clause (1) is passed by a majority  of the total membership of the National Assembly, the President shall  call upon the person named in the resolution as the successor to assume  office and on his entering upon office his predecessor and the Federal  Ministers and Ministers of State appointed by him shall cease to hold  office.

(6) If a resolution referred to in clause (1) is not passed, another  such resolution shall not be moved until a period of six months has  elapsed.”.

21.            Insertion of new Article 95A of the Constitution.- In the  Constitution after Article 95, the following shall be inserted, namely:-

“95A.- Federal Minister performing functions of Prime Minister.-(l) In  the event of the resignation of the Prime Minister or the office of  Prime Minister becoming vacant by any reason or of his ceasing to be a  member of the National Assembly, the Senior Federal Minister for the time  being shall be called upon by the President to perform the functions of  that office and the Federal Ministers and Ministers of State shall  continue in office until a new Prime Minister has entered upon his office.

(2) If the National Assembly is in session at the time when the office  of Prime Minister becomes vacant, the Assembly shall forthwith proceed  to ascertain as to which member of the Assembly commands the’ confidence of majority of the members and if the Assembly is not in session the President shall for that purpose summon it to meet within fourteen days  of the office becoming vacant to ascertain as to which member of the Assembly commands the confidence of the majority of the members.

(3) When the Prime Minister, by reason of absence from Pakistan or any  other cause, is unable to perfoffi1 his functions the Senior Federal Minister for the time being shall perfoffi1 the functions of Prime Minister until the Prime Minister returns to Pakistan or, as the case may be,  resumes his functions.

(4) In this Article, “Senior Federal Minister” means the Federal  Minister for the time being designated as such by the Prime Minister.

22.            Insertion of new Article 99 of the Constitution.- In the  Constitution in Article 99,- (i) in clause (2), for the word “President” occurring for the first time, the words “Federal Government” shall be  substituted; and (ii) in clause (3), for the word “President” the words “Federal Government” shall be substituted.

23.            Amendment of Article 100 of the Constitution.- In the Constitution,  in Article 100, for the word “President” wherever occurs, the words  “Federal Government” shall be substituted.

24.            Amendment of Article 101 of the Constitution.- In the Constitution,  in Article 101, in clause (1), for the words “after consultation with the Prime Minister” the words “from the respective Province” shall be  substituted.

25.            Amendment of Article 104 of the Constitution.- In the Constitution,  in Article 104, after the word “cause” the words “the President may  direct the Speaker of the Provincial Assembly to act as Governor and in  case the Speaker ~ is not available” shall be inserted.

26.            Amendment of Article 105 of the Constitutioll.- In the  Constitution, in Article 105,-(i) in clause (1),-

(a) after the word “act” the words “on and” shall be inserted and after  the word “Minister” at the end, the words and commas “and such advice  shall be binding on him which shall be returned to the Cabinet or the  Chief Minister, as the case may be, within fifteen days” shall be added;

 and

(b) in the proviso after the word “shall” the commas and the words  “,within seven days,” shall be inserted. – (ii) clause (4) shall be  omitted.

27.            Amendment of Article 112 of the Constitution.- In the Constitution,  in Article 112,- in clause (1),-

(a) in the Explanation, the words, brackets and figures “or who is  continuing in office by virtue of clause (2) of Article 134 or a Provincial  Minister performing the functions of Chief Minister under clause (1) or clause (3) of Article 135″ shall be omitted; and (b) Clauses (2) and (3) shall be omitted. –

28.            Amendment of Article 116 of the Constitution.- In the Constitution,  in Article 116, in clause (2), for the word “thirty” the word  “fifteen” shall be substituted.

29.            Amendment of Article 129 of the Constitution.- In the Constitution,  for Article 129, the following shall be substituted, namely:-

“129. The Provincial Government.-(l) Subject to the Constitution, the  executive authority of the Province shall be exercised in the name of  the Governor by the Provincial Government, consisting of the Chief  Minister and Provincial Ministers, which shall act through the Chief Minister who shall be the Chief Executive of the Province.

(2) In the performance of his functions under the Constitution, the  Chief Minister may act either directly or through the Provinci’a1 Ministers.”.

30.            Amendment of Article 130 of the Constitution.- In the Constitution,  in Article 130, for clauses (2), (2a) and (3), the following shall be  substituted, name1y:-

(2) The Provincial Assembly shall meet on the thirtieth day following  the day on which a general election to the Assembly is held, unless  sooner summoned by the Governor.

(3) After the election of the Speaker and the Deputy Speaker, the Provincia1 Assembly shall, to the exclusion of any other business, proceed  to elect without debate one of its members to be the Chief Minister.

(4) The Chief Minister shall be elected by the votes of the majority of  the total membership of the Provincial Assembly:

Provided that, if no member secure such majority in the first poll, a  second poll shall be held between the members who secure the two highest  numbers of votes in the first poll and the members who secures a  majority of votes of the members present and voting shall be declared to have been elected as Chief Minister:

Provided further that, if the number of votes secured by two or more  members securing the highest number of votes is equal, further polls  shall be held between them until one of them secures a majority of votes of  the members present and voting.

(5) The member elected under clause (3) shall be called upon by the  Governor to assume the office of Chief Minister and he shall before  entering upon the office make before the Governor oath in the form set out in the Third Schedule.

31.            Insertion of new Article 133A of the Constitution.- In the  Constitution, after clause 133, the following shall be substituted namely:- ,

 “133A. Provincial Minister performing functions of Chief Minister.-

(I) In the event of the resignation of the Chief Minister or the office  of Chief Minister becoming vacant by any other reason including his  ceasing to be a member of the Provincial Assembly, the Senior Provincial Minister for the time being shall be called upon by the Governor to “perform the functions of that office and the Provincial Ministers shall continue in office until a new Chief Minister has entered upon his  office.

(2) If the Provincial Assembly is in session at the time when the office of Chief Minister becomes vacant, the Assembly shall fort11with proceed to ascertain which one of the members commands the confidence of the majority of members, and if the Assembly is not in session the Governor shall for that purpose summon it to meet within fourteen days of the office becoming vacant to ascertain as to which member of the Assembly  con1l1lents the confidence of the majority of the members.

(3) When the Chief Minister, by reason of absence from Pakistan or any other cause, is unable to perform his functions, the Senior Provincial Minister for the time being shall perform the functions of Chief Minister until the Chief Minster returns to Pakistan or, as the case may be, resumes his functions.

(4) In this Article, “Senior Provincial Minister” means the Provincial  Minister for the time being designated as such by the Chief Minister.

32.            Amendment of Article 136 of the Constitution.- In the Constitution in Article 136, for clauses (2) and (3), the following shall be substituted, name1y:-

“(2) A resolution referred to in clause (1) shall not be moved in the Provincial Assembly unless, by the same resolution, the name of another member of the Assembly is put forward as the successor.

(3) A resolution referred to in clause (1) shall not be voted upon before the expiration of three days, or later than seven days, from the day on which such resolution is moved in the Provincial Assembly.

(4) A resolution referred to in clause (1) shall not be moved in the  Provincial Assembly while the Provincial Assembly is considering demands  for grants submitted to it in the Annual Budget Statement.

(5) If the resolution referred to in clause (1) is passed by a majority  of the total membership of the Provincial Assembly, the Governor shall  call upon the person named in the resolution as the successor to  assume office and on his entering upon office his predecessor and the  Provincial Ministers appointed by him shall cease to hold office.

(6) If a resolution referred to in clause (1) is not passed, another  such resolution shall not be moved until a period of six months has  elapsed.”.

33.            Substitution of Article 139 of the Constitution.- In the  Constitution, in Article 139,- (i) in clause (2), for the word “Governor” occurring for the first time, the words “Provincial Government” shall be substituted; and (ii) in clause (3), for the word “Governor” the words  “Provincial Government” shall be substituted.

34.            Amendment of Article 153 of the Constitution.- In the Constitution, in Article 153,-(i) for clause (2), the following shall be substituted, namely:-

“(2) The members of the Council shall be-

(a) Prime Minister who shall be Chairman of the Council

(b) the Chief Ministers of the Provinces,

(c) Leader of the House and Leader of the OP2osition in the Senate,

(d) Leader of Opposition in the National Assembly, and

(e) two members from Federal Government to be nominated by the Prime  Minister and one member each from Provincial Government to be nominated  by the Chief Minister. (ii) for clauses (3) and (4) the following shall  be substituted, namely:-

“(3) The meetings of the Council shall be summoned by the Chairman or  on requisition made by one-half members of the Council.

(4) The Council shall meet at least twice in a year and the quorum for  meeting of the Council shall be one-half of the members. – (iii) after clauses (3) and (4) substituted as aforesaid, the following new clause  shall be added, namely:-

“(5) The Council shall be responsible to the Parliament and shall  submit reports of its meetings to each House for discussion and  recommendations, if any.”

35.            Amendment of Article 156 of the Constitution.- In the Constitution, in Article 156,-

(i) for clause (1), the following shall be substituted, namely:-

“(1) The President shall Constitute National Economic Council consisting of the following members, namely:-

(a) Prime Minister who shall be Chaiffi1an of the Council,

(b) the Chief Ministers of the Provinces, and

(c) two members from Federal Government to be nominated by the Prime  Minister and one member each from Provincial Government to be nominated  by the Chief Minister.’ (ii) after clause (1), substituted as aforesaid,  the following new clauses shall be added, namely:-

“(IA) The meetings of the Council shall be summoned by the Chairman or  on requisition made by one-half members of the Council.

(lB) The Council shall meet at least twice in a year and the quorum for meeting of the Council shall be one-half of the members.”, (iii) after clause (2), the following new clause shall be added, namely:- ,

“(3) The Council shall be responsible to the Parliament and shall  submit reports of its meetings to each House for discussion and  recommendations, if any.”

36. Amendment of Article 160 of the Constitution.- In the Constitution,  in Article 160, for the words “five years” the words “three years”  shall be substituted.

37.            Amendment of Article 175 of the Constitution.- In the Constitution,  in Article 175,- (i) in clause (1), after the word “Province” the  words and comma “and a High Court for the Islamabad Capital Territory”  shall be inserted; and (ii) after clause (3), the following new clause shall be added, namely:-

(4) No Court including the Supreme Court or a High Court shall have  jurisdiction to validate any extra-constitutional measure or takeover by  use of force or show of force or by other unconstitutional means as envisaged by Article 6.”

38.            Amendment of Article 177 of the Constitution.- In the Constitution, in Article 177, in clause (1), for the words “after consultation with the Chief Justice” the words, figure and letter “in the manner provided in Article 177 A” Shall be substituted.

39.            Insertion of new Article in the Constitution.- In the Constitution,  after Article 177, the following new Article shall be inserted, namely:-

“177A. Procedure for appointment of Supreme Court Judges. –

(1) There shall be a Commission for ~he appointment of Chief Justice of  Pakistan and other Judges of Supreme Court which shall consist of the  following members, namely:-

(a) Chief Justice of Pakistan who shall be Chairman of the Commission;

(b) All Chief Justices of the Provincial High Courts and Chief Justice  of Islamabad High Court failing which the senior most Judge of the respective High Court; and

(c) Federal Minister for Law and Justice.

Explanation:- For the purpose of this clause, the inter se seniority of  the Judges of the respective High Courts shall be determined with  reference to their dates of appointment as Judges, and in case the dates of  such appointment are the same, with reference to their dates of  appointment as Judges of any of the High Courts.

(2) In case of appointment of Chief Justice of Pakistan Federal Law  Minister shall be the Chairman of the Commission.

(3) The Commission shall forward a panel of two names for each vacancy  of a Judge to the Prime Minister, who shall forward one name to Joint  Parliamentary Committee for confirmation through a transparent process.

(4) The Joint Parliamentary Committee referred to in clause (3) shall comprise of three members from the treasury benches and two from  Opposition in the National Assembly to be nominated by the Leader of the House and the Leader of the Opposition, respectively and one member from Senate to be nominated by the Leader of the Opposition.”

40.            Substitution of Article 179 of the Constitution.- In the Constitution, for. Article 179, the following shall be substituted, namely:-

“179. Retiring age.- (1) Subject to clause (2), a Judge of the Supreme  Court shall hold office until he attains the age of sixty-eight years  unless he sooner resigns or is removed from office in accordance with  the Constitution.

(2) The Chief Justice of the Supreme Court whether appointed before or after the commencement of the Constitution (Eighteenth Amendment) Act,  2008 shall unless he sooner attains the age of sixty-eight years shall  hold office for a term of……… years and shall thereafter have the  option either-

(a) to retire from his office and receive the pension to which he would have been entitled if he had retired from office on attaining the age of sixty-eight years; or

(b) to assume the office of the Judge of the Supreme Court and to  continue to receive the same salary which he was receiving while holding the  office of Chief Justice.

A person who has once held office as Chief Justice of the Supreme  Court, otherwise than under Article 180, shall not again be appointed to  that office.”.

41.            Amendment of Article 181 of the Constitution.- In the Constitution  in Article 181,- (i) in clause (1), the Explanation shall be omitted;

 and (ii) for clause (2), ,the following shall be substituted, namely:-

“(2) The appointment under this Article shall continue in force for a  period not exceeding one year unless it is earlier revoked by the  President.”.

42.            Amendment of Article 182 of the Constitution.- In the Constitution,  in Article 182, for the words “for such period as may be necessary” the words “for a period not exceeding one year” shall be substituted.

43.            Amendment of Article 183 of the Constitution.- In the Constitution, in Article 183,- (i) in clause (1), the commas, words and brackets “, subject to clause

(3),” shall be omitted; and (ii) clause (3) shall be omitted.

44.            Amendment of Article 184 of the Constitution.- In the Constitution, in Article 184,- (i) in clause (3), for the words “public importance” the words “general public importance” shall be substituted and for the words “the nature” the words “declaratory nature” shall be substituted; and (ii) after clause (3), amended as aforesaid, the following new clause shell be added, namely:-

“(4) An application made under clause (3) shall be heard by a Bench comprising not less than five Judges to be constituted by the Chief  Justice of Pakistan in consultation with two most senior Judges of the Supreme Court.”

45.            Amendment of Article 185 of the Constitution.- In the Constitution, in Article 185, in clause (2),-

(a) in paragraph (a), the words “or to transportation for life” shall be omitted; and

(b) in paragraph(d), for the words “fifty thousand” the words “one million” shall be substituted.

46.            Amendment of Article 192 of the Constitution.- In the Constitution, in Article 192, after clause (1), the following new clause shall be inserted, namely:-

“(1A) There shall be reserved in each High Court upto ten percent seats  for women and at least thirty percent seats- for persons from the  judiciary.”.

47.            Amendment of Article 193 of the Constitution.- In the Constitution,  in Article 193, for clause (1), the following shah be substituted,  namely:-

“(1) The Chief Justice of a High Court and each of the other Judges  shall be appointed by the President in the manner provided in Article 193A.”.

48.            Insertion of new Article in the Constitution.- In the Constitution, after Article 193, the following new Article shall be inserted, namely:-

“193A. Procedure for appointment of High Court .Judges.- (1) There  shall be a Commission for the appointment of Chief Justice of a High Court and other Judges of a High Court which shall consist of the following  members, name1y:-

(a) Chief Justice of Pakistan who shall be Chairman of the Commission;

(b) Chief Justice of the High Court” failing which the senior most  Judge of the respective High Court;

(c) Federal Minister for Law and Justice; and

(d) Provincial Law Minister of the respective Province.

Explanation:- For the purpose of this clause, the inter se seniority of  a Judge of the respective High Court shall be deteffi1ined with  reference to his date of appointment as Judge.

(2) In case of appointment of Chief Justice of a High Court Federal  Minister for Law and Justice shall be the Chairman of the Commission.

(3) The Commission shall forward a panel of two names for each vacancy  of a Judge to the Chief Minister, who shall forward one name to Joint Parliamentary Committee for confirmation through a transparent process.

(4) The Joint Parliamentary Committee referred to in clause (3) shall  consist of three members from the treasury benches and three from  Opposition in the Provincial Assembly to be nominated by the Leader of the  House and the Leader of the Opposition, respectively.”

49. Amendment of Article 194 of the Constitution.- In the Constitution,  in Article 194, for the full stop at the end, a colon shall be substituted and thereafter the following proviso shall be added, namely:-

“Provided that in case of Chief Justice of the Islamabad High Court,  the oath shall be made before the President or a person nominated by  him.”

50.            Substitution of 195 of the Constitution.- In the Constitution, for  Article 195, the following shall be substituted, namely:-

“195. Retiring age.- (1) Subject to clause (2), a Judge of a High Court  shall hold office until he attains the age of sixty-five years, unless  he sooner resigns or is removed from office in accordance with the  “Constitution;

(2) The Chief Justice of a High Court whether appointed before or after  the commencement of the Constitution (Eighteenth Amendment) Act, 2008  shall unless he sooner attains the age of sixty-five years, hold office  for a term of …years and shall have option either-

(b) to retire from his office and receive the pension to which he would have been entitled if he had retired from office on attaining the age of sixty-five years; or

(c) to assume the office of the Judge of the High Court and to continue  to receive the same salary which he was receiving while holding the  office of Chief Justice.

(3) A person who has once held office as Chief Justice of a High Court,  otherwise than under Article 196, shall not again be appointed to be  the Chief Justice of that High Court.”.

51.            Amendment of Article 196 of the Constitution.- In the Constitution, in Article 196, for the word “one” the words “the most senior” shall  be substituted and the commas and words “,or may request one of the Judges of the Supreme Court,” shall be omitted.’

52.            Amendment of Article 197 of the Constitution.- In the Constitution,  in Article 197, in paragraph (c), the word and commas ”as the  President may determine, being a period not exceeding such period, if any, as  may be prescribed by law” the words “not exceeding one year” shall be  substituted.

53.            Amendment of Article 198 of the Constitution.- In the Constitution, in Article 198, after clause (1), the following new clause shall be  inserted, namely:-

(a) “(1 A) The High Court for Islamabad Capital Territory shall have  its principal seat at Islamabad.

(b) in clause (3), for the words “at Suklrur” the words and comma “each at Sukkur, Hyderabad and Larkana” shall be substituted.

(c) in clause (4), the word “in consultation with” shall be omitted.”.

54.            Amendment of Article 203B of the Constitution.- In the Constitution, in Article 203B, in paragraph (c), for the words and comma “or, until the expiration of ten years from the commencement of this Chapter” the word “and” shall be substituted.

55.            Amendment of Article 207 of the Constitution.- In the Constitution, in Article 207, for clause  (2), the following shall be substituted,  namely:-

“(2) A person who has held office as Judge of the Supreme Court or of a  High Court shall not hold any office of profit in the service of  Pakistan, before expiration of two years after he has ceased to hold that  office.”.

56.            Amendment of Article 208 of the Constitution.- In the Constitution in Article 208, for the full stop, at the end, a colon shall be  substituted and thereafter the following proviso shall be added, namely:-

“Provided that in case of the High Court for Islamabad Capital  Territory the rules may be made with the approval of the President.

57.            Substitution of Article 209 of the Constitution.- In the Constitution, for. Article 209, the following shall be substituted, namely:-

“209 Judicial Commission of Pakistan.-(l) There shall be a Judicial  Commission of Pakistan, in this Chapter referred to as the Commission.

(2) The Commission shall consist of the following members, namely:-

(i) Non-politicized retired Chief Justice of Pakistan who shall be the  Chairman of the Commission;

(ii) Non-politicized two retired Judges of Supreme Court; and

(iii) Non-politicized retired Judge of each High Court.

(3) The members of the Commission shall be appointed by the President  on terms and conditions to be determined by the Federal Government.

(4) If at any time the Commission is inquiring into the capacity or conduct of a Judge and a member of the Commission is absent or is unable to act due to illness or any other cause then another non-politicized retired Judge of the Supreme Court or, as the case may be, of High Court shall be appointed as a member of the Commission in his place.

(5) If upon any matter inquired into by the Commission there is a  difference of opinion amongst its members the opinion of the majority shall  prevail and the report of the Commission to the President shall be expressed in terms of the view of the majority:

Provided that in the event of the votes being “equally divided the  Chairman shall have a casting vote.

(6) On information received from any source, the President or the  Chairman and two other members who are retired Judges of the Supreme Court  if so recommend or on the requisition of not less than one-fourth of the total membership of the Commission, the Chairman of the Commission shall within thirty days place the information or requisition before the Commission and the Commission shall enquire into and finalize the enquiry within ninety days as to whether Judge of the Supreme Court or High Court-

(a) has become incapable of properly performing the duties of his office by reason of his physical or mental incapacity; or

(b) has been guilty of misconduct.

Explanation.- Where information is against the Chief Justice of Pakistan, the recommendation, if any, shall be made by two members who are retired Judges of the Supreme Court.

(7) After finalizing the enquiry, the Commission shall send its report  to the President and if the Commission is of the opinion that the Judge  has become incapable of performing the duties of. His office or has been guilty of misconduct, the President shall forthwith remove the Judge from the office.

(8 ) If at any time the Commission is enquiring into the capacity of or  conduct of the Chief Justice of Pakistan or a Chief Justice of High  Court or a Judge of the Supreme Court or of a High Court, the President shall by order in writing require such Chief Justice or a Judge to  proceed on leave from such date and for such period as may be specified in the order.

(9) The Commission shall have the power to regulate its own procedure  and have powers of a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), including the power of-

(a) enforcing the attendance of any person and examination him on oath;

(b) compelling the production of documents; and

(c) issuing Commission for the examination of witnesses and documents.

(10) The Chairman of the Commission shall summon the meetings of the Commission.

(11) A meeting may also b~ requisitioned by not less than one- fourth of the total members of the Commission.

(12) The quorum for the meetings of the Commission shall not be less than five members of the Commission.

(13) No proceedings of the Commission or any report submitted by it shall be void because of any vacancy or vacancies in the membership of the Commission.

(14) A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article.

(15) The Commission shall make Code of Conduct to be observed by the Judges of the Supreme Court and the High Courts.

(16) If the Commission after inquiry is’ of the opinion- that the information given by the informant is false, the Commission may after affording opportunity of hearing to such person punish him upto one year or fine or with both and such punishment shall be executed as if awarded by a Court.

Explanation:- In this Article and Article 209A, the expression “Judge” includes the Chief Justice of Pakistan or Chief Justice of High Court.

58.            Insertion of new Article in the Constitution.- In the Constitution, after Article 209, the following new Article shall be inserted, name1y:-

“209A. Appeal against the decision under Article 209.- A Judge or an  informer aggrieved by a decision under Article 209 may file appeal against such decision within thirty days to the Supreme Court which shall be heard by a Bench of not less than nine Judges _and the Supreme Court shall decide the appeal within thirty days.”.

59.            Amendment of Article 213 of the Constitution.- In the Constitution, in Article 213,- (i) for clause (1), for the following shall be substituted, namely:-

“(1) There shall be Chief Election Commissioner (in this Part referred  to as the Commissioner), who shall be appointed by the President in the  following manner, namely:-

(a) The Prime Minister in consultation with the Leader of the  Opposition in the National Assembly shall forward two names to Joint  Parliamentary Committee for confirmation of anyone name;

(b) The Joint Parliamentary Committee shall comprise of three members from the treasury benches and two from Opposition in the National Assembly to be nominated by the Leader of the House and the Leader of the Opposition, respectively and one member from the Senate to be nominated by the Leader of the Opposition;

(c) In case there is no consensus between the Prime Minister and a Leader of the Opposition, each shall forward separate list of the requisite persons mentioned above to the Joint Parliamentary Committee for consideration which may confirm any one name.”; (ii) in clause (3), for the word “law” the words “by Act of Parliament” shall be substituted.

60.            Amendment of Article 215 of the Constitution.~ In the Constitution, in Article 215, in clause (1), in the proviso, for the words “National Assembly” the words “Parliament in joint sitting” shall be substituted

61.            Amendment of Article 218 of the Constitution.- In the Constitution,  in Article 218, in clause (2), for paragraph (b), the following shall be substituted, name1y:-

“(b) Five members, each of whom is or has been a Judge of a High Court  of respective Province and Islamabad Capital Territory appointed by the  President in the manner provided in clause (1) of Article 213.”.

62.            Amendment of Article 219 of the Constitution.- In the Constitution in Article 219 and in the marginal note for the word “Commissioner” the word “Commission” shall be substituted.

63.            Amendment of Article 221 of the Constitution.- In the Constitution in Article 221, for the word “Commissioner” occurring for the first and second time the words “Election Commission” shall be substituted and the words “Commissioner or an” shall be omitted.

64.            Amendment of Article 224 of the Constitution.- In the Constitution, in Article 224,- (i) in clause (1), in the proviso,-

(a) for the word “his discretion” the words “consultation with the Chairman Senate and the Speaker of the National Assembly” shall be substituted;

(b) for the words “his discretion” the, words “consultation with Speaker of the Provincial Assembly” shall be substituted;

(c) before the word “Care-taker” the word “neutral” shall be inserted;

and “(ii) in clause (7), after the words “Prime Minister” the words “and Federal Ministers” shall be inserted and after the words “Chief Minister” the words “and Provincial Ministers” shall be inserted.

65.            Amendment of Article 243 of the Constitution.- In the Constitution,  in Article 243,- (i) in clause (3), the commas and words “,in  consultation with the Prime Minister,” shall be omitted; and (ii) after clause

 (3) amended as aforesaid, -the following new clause shall be added, namely:-

“(4) For the purposes of paragraphs (b), (c) and (d) of clause (3), the sitting Chief will give panel of three names in order of priority to the President who will choose one of them for appointment.”.

66.            Insertion of new Article in the Constitution.- In the Constitution, after Article 243, the ,following new Article shall be inserted, namely”-

“243A. Declaration of war.- Notwithstanding anything contained in the  Constitution or any other law for the time being in force, no person or authority shall declare war or use Armed Forces against any foreign Government or country without prior approval of the Prime Minister or the Cabinet.”.

67.            Amendment of Article 247 of the Constitution.- In the Constitution,  in Article 247,- (i) clauses (3) and (4) shall be omitted; (ii) in clause (5), for the word “”President” the words “Federal Government” shall be substituted; and (iii) in clause (6), for the word “President” occurring thrice, the words “Federal Government” shall be substituted.

68.            Amendment of Article 255 of the Constitution.- In the Constitution, in Article 255, after clause (3), the following new clause shall be added, namely:-

“(4) A Judge of the Supreme Court, a High Court or the Federal Shariat Court who makes oath other than that prescribed in the Third Schedule, shall cease to be a Judge of the Supreme Court or a High Court, or the Federal Shariat Court, as the case may be.

Explanation:- For the purposes of this clause the expression “Judge” includes the Chief Justice of Supreme Court, Chief Justice of a High Court and the Chief Justice of Federal Shariat Court.”

69.            Amendment of Article 260 of the Constitution.- In the Constitution in Article 260, in clause (1), after the expression “clause” the expression “consultation” and the entries relating thereto shall be omitted.

70.            Amendment of Article 267 of the Constitution.- In the Constitution in Article 267, in clause (1),- (i) the words “before the commencing day or” shall be omitted and for the words “commencing day” the words, brackets, comma and figure “commencement of the Constitution (Eighteenth Amendment) Act, 2008” shall be substituted; and (ii) for the word “Constitution” occurring twice, the words, brackets, comma and figure “Constitution (Eighteenth Amendment) Act, 2008” shall be substituted.

71.            Amendment of Article 268 of the Constitution.- In the Constitution, in Article 268, clause (2) shall be omitted.

72.            Amendment of. Article 270A of the Constitution.- In the Constitution, in Article 270A,- (i) in clause (1), the commas, words and figures  “, under which in consequence of the result of the referendum held on the nineteenth day of December, 1984, General Muhammad Zia-u1-Haq became the President of Pakistan on the day of first meeting of Majlis-e-Shoora (Parliament)” in joint sitting for the term specified in clause (7) of Article 41″ shall be omitted; and (ii) clause (6) shall be omitted.

73.            Insertion of new Article 270AAA in the Constitution.- In the Constitution, after Article 270AA the following new Article shall be  inserted, namely:-

“270AAA. Validation of Ordinances etc.- (1) The Islamabad High Court  (Establishment) Order, 2007 (P.O. No.7 of 2007) and the Ordinances, except those specified in the Sixth Schedule, made between the 12th day of July, 2007 and the 15th day of December, 2007 (both, days inclusive) and actions taken there under shall be deemed to have been validly made and taken by the competent authority notwithstanding the expiry of period of four months specified in Article 89 and notwithstanding anything contained in the Constitution shall not be called in question in any court or forum on any ground whatsoever.

(2) The Islamabad High Court (Establishment) Order, 2007 P.O. No.7 of 2007) and the Ordinances, except those specified in the “Sixth Schedule, in force between the 12th day of July, 2007 and the 15th day of December, 2007 (both days inclusive) shall continue in force until altered, repealed or amended by the appropriate legislature.

74.            Insertion of new Article 270BB in the Constitution.- In the Constitution, after Article 270B, the following new Article shall be inserted, namely:-

“270BB. General Elections 2008 to be deemed to be held under the Constitution.- Notwithstanding anything contained in the Constitution or any other law for the time being in force, the General Elections 2008 held on the 18th day of February, 2008, to the National Assembly and the Provincial Assemblies shall be deemed to have been held under the Constitution and shall have effect accordingly and shall not be called in question in any court or forum including the Supreme Court on any ground  whatsoever.”.

75.            Insertion of new Article in the Constitution.- In the Constitution after Article 270C, thy following new Article shall be inserted, namely:-

“270CC. Restoration of Superior Court Judges.- Notwithstanding anything contained any provision of the Constitution, the Oath of Office (Judges) Order, 2007, the High Court Judges (Pensionary Benefits) Order, 2007 (P.O.No. 8 of2007), the Supreme Court Judges (Pensionary Benefits) Order, 2007 (P.O.No. 9 of 2007) and any other law for the time being in force or judgment of any Court including a High Court and the Supreme Court, the Judges of Supreme Court and High Courts including the Chief Justice of Supreme Court and Chief Justices of High Courts who had ceased to continue to hold office in pursuance of the Oath of Office (Judges) Order, 2007, dated the 3rd day of November, 2007, shall stand reinstated/restored to the position and seniority they were holding on the 2nd day of November, 2007.

Provided that a Judge shall not stand reinstated/restored who has already retired on attaining the age of superannuation or a Judge who has joined Federal or Provincial Government service- or a post under any authority, corporation, body or organization established by or under a federal law, provincial law or which is owned or controlled by the Federal Government or a Provincial Government or in which the Federal Government or a Provincial Government has a controlling share or interest, provided that such Judge shall be entitled to pensionary benefits in accordance with law.

76.            Amendment of Third Schedule of the Constitution.- In the Constitution, in the Third Schedule, in the Form of oath prescribed for Members of the Armed Forces, after the word “uphold” the words “and shall not abrogate, subvert, suspend or hold in abeyance or attempt or conspire to abrogate, subvert, suspend or hold in abeyance” shall be inserted.

77.            Amendment of the Fourth Schedule to the Constitution.- In the Constitution, in the Fourth Schedule, in the Concurrent List entries 6,11,19,21,23,25,33,37,41 and 43A shall be omitted.

78.            Substitution of Sixth Schedule of the Constitution.- In the Constitution, for the Sixth Schedule, the following shall be substituted, namely:-

“SIXTH SCHEDULE

[See Article 270AAA]

1. The National Commission for Human Development (Amendment) Ordinance,  2007 (XXXVII of2007).

2. The Police Order (Amendment) Ordinance, 2007 (XLI of 2007).

3. The Press, Newspapers, News Agencies and Books Registration (amendment) Ordinance, 2007 (LXIY of2007).

4. The Pakistan Electronic Media Regularity Authority (Third Amendment) Ordinance, 2007 (LXV of2007).

5. The Pakistan Army (Amendment) Ordinance,’2007 (LXVI of2007).

6. The Legal Practitioners and Bar Councils (Amendment) Ordinance, 2007 (LXIX of2007).”.

79.            Omission of Seventh Schedule of the Constitution.- In the Constitution, the Seventh Schedule shall be omitted.

80.       General amendment of the Constitution.- In the Constitution, for the words and brackets “Majlis-e-Shoora (Parliament)”, wherever occurring, the word “Parliament” shall be substituted.

STATEMENT OF OBJECTS AND REASONS

Through extra-constitutional deviation, the Constitution of the Islamic Republic of Pakistan had undergone substantial changes, adversely  affecting parliamentary system envisaged by it. Substantial amendments have  been made to restore its parliamentary character and also ensure independence of the judiciary.

2. The Bill seeks to achieve the aforesaid objects.

 

(FAROOQ H. NAIK)

Minister for Law, Justice, Parliamentary Affairs

and Human Rights

Minister-In-Charge

 

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