26th Constitutional Amendment: A Challenge to Judicial Independence and Democracy
The 18th-century French philosopher Montesquieu once said, “There is no liberty if the judiciary power is not separated from the legislative and executive.” The quote emphasizes the idea of separating powers among the three major tiers of the state: the judiciary, legislature, and executive. According to Montesquieu, concentrating these powers in a single body would lead to tyranny, as there would be no checks and balances to prevent abuse of power. The introduction of the 26th Amendment to the constitution of Pakistan violates Montesquieu’s principle of separation of power by overpowering the executive over the judiciary. Although the government claims this amendment is a move towards strengthening democracy and the rule of law, it has, in reality, eroded the judiciary’s independence and made it subservient to the executive. The major changes introduced through this amendment to control the judiciary are altering the procedure for appointing the Chief Justice, enhancing the role and members of the judicial commission, and curbing the suo motu power of the Supreme Court.
Previously, the Chief Justice was appointed based on seniority. Following the 26th constitutional amendment, the government now has the power to nominate a chief justice from among the three most senior judges of the Apex Court through a special parliamentary committee. The judicial commission, composed largely of the government nominees after the amendment, would select the judges of the new constitutional benches. In addition, the judicial commission has also been empowered to evaluate the annual performance of the high court’s judges. Before the 26th Amendment, the Supreme Court held the suo motu power to act in areas where the bureaucracy or the executive failed to function adequately. However, with the passage of this amendment, the suo motu powers of the Supreme Court have been curtailed.
This overall reshuffling of the constitutional rules would allow the ruling government to select the judges for the higher judiciary based on its preferences for hearing the cases of concern to it, thereby undermining the credibility and independence of the judicial system. The judges, even the chief justice, selected by the government would likely serve the whims and wishes of the ruling government rather than uphold justice impartially. The International Commission of Jurists ( ICJ) stated that “the new constitutional changes would increase political influence in judicial appointments and judiciary’s administration. It also asserted that the amendment would erode the judiciary capacity to work independently, and to check the actions of other state’s institutions.” UN High Commissioner for Human Rights, Volker Turk, also said that the constitutional amendment would seriously undermine the independence of the judiciary.
Therefore, the passage of the amendment aims to block the route of the Supreme Court from challenging the decisions the government has taken against the opposition, especially Pakistan Tehreek-e-Insaf (PTI). The fear that the new Chief justice, if appointed based on seniority, could rule fairly on the petitions filed by the PTI, including the audit of the 2023 general elections, was a real motivation behind this controversial amendment.
Proponents of this amendment, including government ministers, often justify it by stating that the United States of America( USA ), India, and some other countries follow the same procedures for judicial appointments. While the USA has a similar procedure, once Congress approves the judges, they are appointed for a lifetime. These lifetime appointments ensure greater transparency in the judicial system, as judges cannot be easily influenced by force or other tactics. Similarly, in India, the president selects judges of the higher judiciary; however, the selection is based on the recommendations of the judiciary’s internal body, known as the collegium. The collegium, unlike the judicial commission of Pakistan, which is composed largely of government nominees, consists only of the four senior judges, including the chief justice, to prevent undue influence from the executive branch. Therefore, this preposterous claim by the government and its allies cannot be substantiated and is baseless.
Besides limiting the judiciary’s independence, the 26 Amendment also sounds the alarm for democracy in the country. Democracy thrives only when judges of the judiciary can make decisions free from personal biases, prejudices, and political interference. However, by making the judiciary subservient to the executive, the 26th Amendment weakens the country’s democracy by eroding public trust in the judicial system. As the majority of Pakistanis do not consider the incumbent government a legitimate one, decisions in favor of the government by the higher judiciary could escalate political polarisation in society, potentially derailing democracy in the long run.
The belief that using coercive tactics would be sufficient for maintaining power and gaining legitimacy shows that the government is fragile and that it has no faith in democratic institutions. The government in Pakistan has yet to gain legitimacy or consolidate power by changing the rules of the games; rather, consolidating power and attaining legitimacy only depend on the government’s performance and policies. Thus, the 26th amendment to the constitution of Pakistan not only erodes the judiciary’s judiciary’s independence but also paves the way for weakening democracy.
The writer is a political science graduate from Quaid-e-Azam University, Islamabad.
