Pakistan’s Senate passed the 26th Constitution Amendment Bill also known as the Constitutional Package, which limits the tenure of the Chief Justice to three years, on October 20, 2024 sparking considerable controversy and debate within the country.
The amendment has been met with opposition from various political parties. The Prime Minister Imran Khan’s party PTI’s political committee decided to boycott the voting process in both houses of the parliament.
The 26th Constitutional Amendment or constitutional package will undoubtedly politicize the judiciary by introducing parliamentary oversight into judicial appointments and by limiting the Chief Justice of Pakistan’s (CJP) tenure to three years. This could lead to political influence over judicial decisions and undermine the checks and balances within the government institutions. Additionally, the removal of the Supreme Court’s suo motu powers, which allowed it to take up cases on its own initiative, is a dilution of judicial authority. Legal experts and opposition leaders fear that these changes could weaken the judiciary’s ability to act as an independent and impartial arbiter. This increased political interference erodes the judiciary’s capacity to function independently and effectively as a check on the government’s actions.Writing for the Dawn, Salahuddin Ahmed president of the Sindh High Court Bar Association has equated the constitutional package as Pakistan’s national suicide?
The amendment also grants the executive branch greater control over the judiciary’s internal administration. This includes the allocation of resources, the assignment of cases, and other administrative functions. Such interference can hinder the judiciary’s ability to efficiently and effectively discharge its duties, potentially leading to delays and a decline in the quality of justice.
Reacting to the bill’s passage, Lawyer Khadija Siddiqui said, “unprecedented circumstances where a draft was approved in complete clandestinity & secrecy. Constitution is NOT a secret document & any amendment cannot be made undercover! No parliamentarian has been provided a copy to even read through what was approved.”
The controversial nature of the amendment stems from its potential implications for the judiciary’s independence and the balance of power between the executive and judicial branches. Limiting the Chief Justice’s tenure could undermine the judiciary’s ability to function as a check on the government’s actions. The changes brought forth by the bill have significant implications for the judiciary’s role as a protector of human rights. Previously, the judiciary enjoyed a degree of autonomy in selecting and appointing judges. However, the amendment introduces mechanisms that grant greater discretion to the executive branch in these matters. This politicization of judicial appointments raises concerns about the potential for bias and the judiciary’s ability to maintain its impartiality.
The 26th Amendment’s provisions allowing the executive branch to select the Chief Justice and a parliamentary committee to determine which superior court judges can hear constitutional matters represent a significant erosion of judicial independence. These changes serve to undermine the judiciary’s autonomy and place it in a position of subservience to the legislature and the executive, compromising the judiciary’s ability to check on the government’s actions.
Barrister Asad Rahim minced no words about the implications of the amendments on the judiciary’s independence. “The post-Musharraf consensus is officially over. The 26th Amendment is the biggest reversal for judicial independence in three decades,” he said. Offering a scathing critique of the Constitutional package he argued that process of choosing the CJP from a list of three candidates is likely to create a climate of political intrigue and competition, jeopardizing the stability and impartiality of the judiciary
An independent judiciary is essential for safeguarding individual liberties and ensuring that the government acts within the bounds of the law. By eroding the judiciary’s independence, the amendment undermines its ability to effectively challenge government excesses and protect the rights of citizens.
Moreover, the 26th Constitutional Amendment has significantly altered the composition and functioning of the Judicial Commission of Pakistan (JCP), a body responsible for nominating judges to the Supreme Court and High Courts. Prior to the amendment, the JCP was dominated by judges, ensuring a predominantly judicial perspective in the selection process.
The amendment has introduced a significant change by including two members of the National Assembly and two members of the Senate in the JCP. Reacting to the inclusion of political representatives in the Judicial Commission Lawyer Rida Hosain said that this was an “obvious aim to capture an independent judiciary.” stating that, “a commission that includes government representatives will ‘evaluate’ the performance of superior court judges. Allowing government representatives to evaluate judicial performance is tantamount to giving the government the right to punish and reward judges. The government may render an adverse evaluation to target a judge that has given decisions against them.”
The 26th Constitutional Amendment has also notably modified the process of appointing the Chief Justice of Pakistan (CJP), introducing a new mechanism that grants greater political influence over this critical position. Prior to the amendment, the most senior judge of the Supreme Court automatically assumed the role of CJP. This tradition ensured that the appointment was based solely on seniority and judicial merit. However, the amendment now empowers a “Special Parliamentary Committee” (SPC) to nominate the CJP from among the three most senior judges. This SPC consists of eight members of the National Assembly and four members of the Senate, effectively giving political parties a significant say in the selection process. To this Barrister Asad Rahim said, “The method for handpicking the Chief Justice of Pakistan, among a list of three, will ensure a game of thrones every few years, thus wrecking a system that was until now immune to such intrigue.”
For all practical purposes, therefore, the bill abolishes the Supreme Court of Pakistan. Given the government’s history of using the judiciary to serve its political interests, this is concerning as it will allow the government to influence the appointment of the very judge who will preside over cases in which it is litigant. “The proposed Constitutional Amendment betrays the government’s desire to emasculate the judiciary by giving the government’s members a majority on the judicial commission,” says lawyer Mirza Moiz Baig.
PTI leader Hammad Azhar termed the amendment “a death blow to the independence of the judiciary”, explaining how giving the power to appoint judges to the top and high courts to the government would politicise the judiciary. Salman Akram Raja called the moment the “bleakest in our parliament’s history”, terming it a handover of the control of the judiciary to the executive by the parliament. The 26th Constitutional Amendment represents a significant setback for judicial independence. It has established a system where the government effectively wields the power to reward or punish judges based on their judgement and judges who have issued unfavorable rulings could be targeted. A judiciary that is not independent cannot dispense justice without fear or favor. By undermining the judiciary’s independence, the 26th Constitutional amendments further raise questions about Pakistan’s democracy.
