The 26th Amendment is a watershed moment in Pakistani judicial reform, but the critics say it may continue to deepen executive hold over courts’ functions
Daniyal Khan
On October 28, 2024, a session of Pakistan’s National Assembly was called for an extended period starting around 11:36 P.M. on Sunday and running into the early hours of Monday. The Assembly went on to pass the 26th Constitutional Amendment, a bill that has been one of the most controversial and even contentious in Pakistan, and opposition leaders and political analysts have warned that the new legislation threatens to undermine judicial independence in Pakistan. Within hours of final passage, President Asif Ali Zardari signed the new law, transforming the turbulent legislative process into a matter of law and order and launching the latest debate.
26th Constitutional Amendment in a Nutshell
Creation of a Constitutional Bench
Now a newly constituted Constitutional Bench will deal with constitutional issues, thereby curtailing the jurisdiction of the Supreme Court. Earlier, the Suo Motu power of the Supreme Court was extensive under Article 184(3) and enabled it to intervene in matters of public importance. That power has been moved to the Constitutional Bench, creating a more defined structure under the new amendment, but one that raises new questions on the agility and responsiveness of the judiciary.
Judicial Appointments and Independence
The 26th Amendment changes how the Chief Justice of Pakistan will be appointed. Instead of just the president appointing him on a seniority basis, a 12-member Parliamentary Committee (eight National Assembly members and four Senate members) will select the Chief Justice from the top 3 senior judges. It results in the Executive (not the Judiciary) wielding the power to appoint judges, an appointment process that is essentially dependent on political patronage, and thus, judicial independence gets compromised in the process. This has drawn criticism from legal experts and the International Commission of Jurists has labeled the move as an “attack on judicial independence,” and argued that it gives the executive too much influence over the top echelons of the judiciary.
Annual Review of High Court Judges
The provisions in the recent amendment will make compulsory the annual performance review of judges at High Courts as the additional oversight and act on it to make it accountable. However, some critics note that this presents a new avenue for political pressure, as performance metrics and evaluations can easily end up being vetted by the Executive branch.
Reassignment of Suo Motu Powers
Those Suo Motu powers that the Supreme Court used as a catch-all for addressing pressing legal matters of public interest will now be handled by the Constitutional Bench. Which some argue hampers the ability of the judiciary to make independent decisions on national issues and confines the role of the Supreme Court in keeping the Executive in check.
Background and Passage of the Amendment
Passed by a two-thirds majority in both houses after intensive lobbying by the government, the amendment was green-lit at midnight. Opposition by Pakistan Tehreek-e-Insaf (PTI) and a few members crossing party lines could not stop the amendment, resulting in a new Constitutional Bench and narrowing of the powers of the apex court. The government has said the changes will improve judicial efficiency, but critics contend they will entrench executive control over judicial affairs and diminish judicial independence.
Controversies Surrounding the Amendment
The government says the 26th Amendment will lead to a more streamlined and answerable judiciary, but the criticisms have gone the other way. Critics say the Shehbaz Sharif-led ruling coalition is seeking to placate the judiciary — and in fact that it’s seeking to rein in the judiciary — with sensitivities high following clashes between the establishment and the Pakistan Tehreek-e-Insaf (PTI) and its leader, ex-PM Imran Khan. The PTI protested vociferously against it, responding to the amendment as an attack on the independence of the judiciary.
Passage of the Bill: Allegations of Coercion
Certain PTI leaders alleged that dissent was discouraged by threatening them with dire consequences if they did not vote for the amendment. However, local media reported threats of abduction, which has led to grave doubts about the validity of the vote. The government was still able to achieve the supporting votes it required, backed by 225 National Assembly members, despite a wide range of vocal opposition.
Overshadowing that periodic event was the timing of the vote—rammed through in a late-night session with limited discussion—which fed speculation that the government wanted the amendment passed before the public got wind of it. Protesting against what the PTI and some smaller parties described as the absence of gazette notification and deliberation and discussion on such a major constitutional change, they exited the House.
The Legacy of Judicial Control and Influence in Pakistan
Pakistan’s judiciary has historically battled for independence amid repeated political and military interference. Key examples include:
- The Doctrine of Necessity (1954): The judiciary justified the dismissal of the Constituent Assembly by the Governor-General, upholding executive overreach and laying the groundwork for future judicial acquiescence to matters of the executive.
- Judicial Endorsement of Martial Laws: In both events of the military coup d’état by Ayub Khan and Zia-ul-Haq, the judiciary endorsed them by legitimizing their rule as falling under the Doctrine of Necessity.
- The Military Coup of Musharraf Validated: The military coup of General Pervez Musharraf was validated by the judiciary, reflecting the longstanding tradition of the judiciary in the milieu of support for military interventions.
- Panama Papers Verdict Controversies (2017): The disqualification of Nawaz Sharif in the Panama Papers case triggered a heated debate over a seemingly biased verdict influenced by the establishment.
Read: Pakistan’s military ‘well aware’ of its constitutional limits, says army chief
These instances also depict a recurring trend where the Pakistani judiciary always found it difficult to exercise complete independence on a full scale and fell prey to the interests of the executive or military. This decreasing independence is replicated in the 26th Amendment, increasing executive influence in the jurisprudential sphere.
Read: What is Pakistan’s new constitutional amendment all about?
Conclusion
The 26th Amendment is a watershed moment in Pakistani judicial reform, but one that critics say may continue to deepen executive hold over how courts function. With years of historical hurdles, the recent amendment looks like adding kerosene to the fire of judicial independence and freedom. There cannot be two opinions on the significance of the amendment, which is important for any country but especially for Pakistan, where the judiciary has always found itself at a crossroads of power and influence — it highlights the need for an independent judiciary that acts as a neutral, non-partisan check on government power.
Read – Pakistan: 26th Constitutional amendment is a blow to the independence of the judiciary
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The author is a law student at Tando Allahyar Law College with a keen interest in analyzing today’s legal issues. He aims to provide thoughtful insights into the principles and challenges shaping the modern legal landscape.
