The 19th amendment

Introduction:
In other words, we can say purpose for introducing nineteenth amendment to create
separation of powers and check and balances holds that in order to avoid a
concentration of power in the hands of a minority in a political system, the three
principal constituents of government the executive, the legislature and the judiciary
should be separate and enjoy equal and well-defined powers and independence. It is
these checks and balances that protect the people from authoritarian or arbitrary rule.

The 19th Amendment bill, while envisaging a new system for appointments in the
superior courts, aims at neutralizing a probable source of conflict between the judiciary
and the executive, the amendment also raises the number of senior judges as members
of the Judicial Commission to four. Under the amendment, recommendations for the
appointments of ad hoc judges in the superior courts will be made by the Chief Justice
of Pakistan in consultation with the Judicial Commission. Moreover, the bill proposes
that in case of the National Assembly’s dissolution, members of the parliamentary
committee will be from the Senate only.

The 19th amendment of the constitution was presented to the parliament by the
chairman of constitutional reforms committee on 21st December 2010. The national
assembly gave its assent to the bill on 22nd and senate gave its assent on the 30th of
the same month. The president acceded to the constitution on the 1st January 2011.
This amendment changed the following articles; 81, 175A, 182, 213 and 246. Most of
the amendments deal with the justice system of Pakistan and the appointment of
judges.

Salient features of 19th amendment are as follows.

1) This amendment increased the strength of judicial commission from 7 to 9 adding the
appointment of two more senior judges to the commission. Chief Justice will have the
powers to appoint a former judge of the said high court or former chief justice of the high
court to be a member of the judicial in case the sitting chief justice of the high is not
available due to some reason.

2) Member selected from the Supreme Court bar council must have an experience of 15
years as a professional advocate. This amendment made sure that only committed and
experienced professionals are made part of the judicial commission.

3) High court of Islamabad was renamed as Islamabad high court.

4) Tribal areas adjacent to Laki Marwat and Tank have been included in FATA.

5) A parliamentary committee comprising of 8 members was formed. This committee

will finally approve the appointment of judges recommended by the supreme judicial
council. After approval from this committee the list of nominated judges will go to the
Prime Minister house and then to the president who will then give his assent to the
names. If the parliamentary committee rejects the names then they will have to give the
reasons and justifications for their rejection.

6) Prime Minister who had no prior role in the appointment of judges was given role in
the appointment of judges. Prime minister can reject the list of names sent by the
committee and in this scenario; other names will be brought to consideration.

7) The parliamentary committee will consist of 8 members and in case assembly is

dissolved then all members will be taken from the senate. The sessions of the
parliamentary will be in camera and members will have the jurisdiction to scrutinize the
behavior of judges but will not be allowed to discuss matters related to their behavior in
the parliament house or in public.
Conclusion:
A government quoted the message as felicitating all political parties and their members
for showing “maturity, wisdom and farsightedness” in passing the bill, which would
“strengthen democracy and its vital institutions”.

Article 63A of the Constitution cites voting against the directives of one's parliamentary
party on a money bill or a constitution amendment bill among grounds for “defection” for
which a party head may seek a member's disqualification by the Election Commission.
They include increasing the strength of a Judicial Commission, to be headed by the
Supreme Court chief justice and meant to nominate candidates for appointments to the
apex court and high courts, By amending Article 182 of the constitution, the 19th
Amendment has withdrawn powers from the chief justice of Pakistan for the
appointment of ad hoc judges and transferred them to the Judicial Council of Pakistan
(JCP). Under the proposed bill, the president will now carry out the appointments on the
recommendation of the JCP.

The committee has also amended clause 2 of the Article 175-A and now under the
proposed amendment, four instead of two most senior judges will be appointed in the
JCP. To remove the Supreme Court’s apprehensions on the future of the Parliamentary
Committee for Appointment of Judges in case the National Assembly was dissolved, the
constitutional reforms committee proposed an amendment in Article 175-A through
which the parliamentary committee comprising senators will take decisions with regards
to appointment of judges.The 19th Amendment Bill also proposed an amendment in
Article 175-A which binds the parliamentary committee to justify its decision in case it
rejected any nominee of the Judicial Commission for the appointment of judges.

By amending clause 13 of the Article 175-A, the committee included the prime minister
in the appointment of judges. Under the 19th amendment draft bill, the parliamentary
committee shall send the name of the nominee confirmed by it or deemed to have been
confirmed to the prime minister who shall forward it to the president.
Earlier, in the 18th Amendment, the prime minister had no role and the parliamentary
committee had to forward the nominees to the president. The 19th Amendment bill also
proposed that committee meetings will be held in camera and a record of its
proceedings shall be maintained. The parliamentary committee will be allowed discuss
and consider the conduct of judges but parliament would not be allowed to discuss the
conduct of judges. “A judge who happens to be a candidate for the post of chief justice
won’t sit with the high court chief justice and two most senior judges in the JCP. The
chief justice of Pakistan, in the absence of provincial chief justice, shall include a former
chief justice or a judge in the JCP in consultation with the four senior-most judges
included in the JCP,” the amendment says.