The 26th Amendment to Pakistan’s Constitution has passed amid heated debate, accusations of political maneuvering, and claims of backdoor deals. Like many moments in Pakistan’s constitutional history, the process was filled with controversy, making it clear that constitutional changes in the country rarely come without significant political drama. The amendment, while formally approved, has failed to gain unanimous support, with both legal experts and political figures questioning its implications for judicial independence and the balance of power.
Pakistan’s journey with its Constitution has always been turbulent, shaped by political upheaval, military rule, and shifting democratic ideals. From the early days, when the nation experimented with different political systems, to the drafting of the 1973 Constitution, Pakistan’s legal framework has often been bent to serve the interests of those in power. Despite this, the Constitution of 1973, crafted under the leadership of Zulfikar Ali Bhutto, represented a consensus document that embodied fundamental principles, including judicial independence and the separation of powers.
In the years that followed, despite various disruptions and military takeovers, the Constitution’s central principles—such as a commitment to judicial independence—remained largely intact. This spirit of constitutionalism was further solidified with the passage of the 18th Amendment in 2010, which strengthened judicial independence through reforms like the creation of the Judicial Commission and the Parliamentary Committee for judicial appointments.
The 26th Amendment: A Shift in Power
However, the passage of the 26th Amendment marks a significant departure from these principles. The amendment alters the process for judicial appointments, fundamentally weakening the safeguards designed to ensure an independent judiciary. Under the new provisions, the long-established principle of seniority in the appointment of judges has been replaced with a new system where the Chief Justice is selected by a Special Parliamentary Committee. This committee, composed of 12 members—eight from the National Assembly and four from the Senate—will have the final say in selecting candidates for judicial posts.
Previously, the Judicial Commission would forward judicial nominations to a parliamentary committee, which would either approve or reject them. This system was designed to ensure a fair and transparent process, reducing the risk of political interference. But with the 26th Amendment, the nomination process has been streamlined through the Prime Minister’s office, with the final decision resting in the hands of the President. Critics argue that this new arrangement opens the door for political influence, undermining the independence of the judiciary.
Reducing the Judiciary’s Power
Beyond the changes to judicial appointments, the 26th Amendment also curtails the Supreme Court’s ability to exercise its suo moto powers. Article 184(3), which allowed the court to take action in cases involving fundamental rights violations without waiting for a formal petition, has been significantly restricted. In addition, the amendment gives the executive and legislative branches greater control over the judiciary’s functions, including the power to transfer cases from the High Courts to the Supreme Court.
Moreover, the amendment introduces a provision for Constitutional Benches in both the Supreme Court and High Courts, limiting the scope of judicial review in constitutional and advisory matters. These changes raise concerns about the judiciary’s ability to act as an independent check on the other branches of government.
Legal and Political Reactions
The 26th Amendment has generated mixed reactions within the legal community. Some lawyers view the changes as a necessary evolution of Pakistan’s constitutional system, arguing that the previous system, which concentrated power in the hands of a few senior judges, was inherently flawed. They contend that giving parliament a more prominent role in judicial appointments helps bring greater transparency and accountability to the process.
However, many legal experts have expressed alarm at the potential erosion of judicial independence. Khawaja haris, a renowned Pakistani jurist, has warned that the amendment signals a dangerous drift towards authoritarianism. He stresses that while political stability is important, it cannot come at the expense of the rule of law and the independence of judicial institutions.
The concerns raised by these legal experts are not unfounded. With both the executive and legislative branches now holding significant power over judicial appointments, the delicate balance of power enshrined in the Constitution has been upset. The principle of the separation of powers—the cornerstone of any democratic system—has been compromised, leaving the judiciary vulnerable to political influence.
While constitutional amendments are not unusual in a democratic system, the process by which they are enacted and the balance of power they uphold are crucial to maintaining the integrity of the political system. The 26th Amendment, by altering judicial appointments and curbing the powers of the judiciary, risks undermining the very foundations of Pakistan’s constitutional framework.
In the long term, the amendment could weaken the judiciary’s ability to protect fundamental rights and uphold democratic values. By diminishing judicial independence, it poses a threat to the rule of law and sets a concerning precedent for future constitutional changes. As the dust settles on this contentious amendment, Pakistan’s political and legal institutions will likely face significant challenges in restoring trust and ensuring the protection of democratic norms in the years to come.
The writer is a journalist, covering constitutional and legal issues.
