The draft of the proposed 26th Constitutional Amendment in Pakistan has proposed that the government could establish a federal constitutional court alongside the Supreme Court.

The Chief Justice of this constitutional court is to be separate from the Chief Justice of the Supreme Court, resulting in the presence of two Chief Justices in the country. This was reflected in the proposed amendment to Article 175A of the Constitution.

Article 175A pertained to the appointment of judges of the higher judiciary. Following the amendment, the appointment of judges to the higher judiciary was to be carried out by a commission.

Under the proposed amendment, the Chief Justice of the federal constitutional court was given the authority in the appointment of judges to the High Courts and the Federal Shariat Court. However, the appointment of Supreme Court judges primarily remained under the authority of the Chief Justice of the Supreme Court.

When appointing judges to the High Courts and the Federal Shariat Court, the head of the commission will be the Chief Justice of the federal constitutional court. The commission will also include two members from the federal constitutional court, as well as the Chief Justice of the Supreme Court and two senior judges.

Other members of the commission will consist of the Federal Minister for Law, the Attorney General of Pakistan, a senior advocate nominated by the Pakistan Bar Council, and two members each from the Senate and the National Assembly—one from the government benches and one from the opposition.

When the commission appoints judges to the federal constitutional court, the number of judges will be increased from two to three, with all three being the most senior judges.

However, when appointing judges to the Supreme Court, the commission will be chaired by the Chief Justice of the Supreme Court. The commission will also include the five most senior judges of the Supreme Court, while the Federal Minister for Law, the Attorney General, the nominated member from the Bar Council, and the parliamentary members will remain the same as in the case of other judges’ appointments.

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This division of powers seemingly enhances the authority of the Chief Justice of the federal constitutional court while limiting the Chief Justice of the Supreme Court to the apex court itself.