The 26th Amendment: A Threat to Judicial Independence

Pakistan has encountered repeated crises where its democratic institutions and core values stand at pivotal crossroads. The recent enactment of the 26th Amendment on October 21st has raised serious concerns over the independence of the judiciary, prompting significant debate about the balance of power in the country. To some, the amendment appears as a direct attempt by the political establishment to consolidate control over judicial appointments and decisions. This article examines whether the 26th Amendment genuinely strives to fortify democratic principles or if it represents an underlying move to centralize power under the pretext of reform.

The said amendment, passed quietly on the night of October 21st, has drawn attention to the ruling coalition’s influence over Pakistan’s direction at a time of heightened political polarization. Some political figures have touted this change as the realization of the Charter of Democracy, though skeptics question whether it represents a strategic power grab masked as democratic progress. Only time will reveal whether this amendment proves to be a landmark democratic reform or a detrimental shift toward authoritarianism.

What is the 26th amendment of the Pakistan Constitution?

Supporters of the amendment argue that judicial activism has often encroached upon parliamentary sovereignty and disrupted elected civilian governments. They contend that limited accountability has been imposed on judges who historically aligned with military regimes or justified autocratic rule. This narrative provided a foundation for the ruling coalition to advance this amendment. However, critics argue that its real intention is to strengthen executive power rather than protect parliamentary supremacy.

The 26^th Amendment, which could reshape the fabric of Pakistan’s governance, has long-lasting implications. Many observers feel that parliamentarians have disregarded their oaths by threatening the constitution’s essential framework. Comparisons have been drawn with India’s constitutional history, where in the 1960s, the executive attempted to restrict judicial power by declaring amendments immune to Supreme Court challenges. This culminated in the landmark Kesavananda Bharati v. State of Kerala (1973), where India’s Supreme Court established that laws disrupting the constitution’s basic structure—including democracy, the separation of powers, and federalism—are impermissible. Pakistan’s Supreme Court may face a similar interpretation dilemma, but the current government has achieved a reform in judicial appointments that eluded even prior military regimes.

The newly formulated laws contain several provisions that could severely impact judicial independence. First, it grants a parliamentary committee, predominantly composed of government members, the authority to appoint the Chief Justice from among the top three most senior judges. Given the majority’s control over the selection process, questions arise about impartiality, as the treasury benches would be responsible for choosing a judge without external oversight. This increased legislative influence on judicial appointments risks compromising judicial independence, raising fears of an inherent conflict of interest where the executive could potentially influence court decisions.

Additionally, the amendment stipulates that constitutional cases will be heard by a dedicated constitutional bench chosen by the Judicial Commission of Pakistan (JCP). However, the JCP’s composition now includes representatives from the ruling coalition, granting the government considerable sway over bench formation in politically charged cases. With important cases pending—such as those challenging civilian trials in military courts and the legitimacy of recent elections—the coalition’s ability to influence bench composition could destabilize the judicial process. This adjustment could derail the impartial dispensation of justice, leading to a judiciary shaped to accommodate governmental interests rather than uphold an unbiased legal framework.

26th Constitutional Amendment: A Challenge to Judicial Independence and Democracy

A third significant change introduced by the amendment is the JCP’s new authority to conduct annual evaluations of high court judges. While this measure is framed as a method of judicial accountability, its incorporation of parliamentary members raises concerns about potential misuse. Critics argue that the evaluation process could become a mechanism for political retaliation, particularly against judges who oppose government actions. This development risks transforming constitutionally protected judicial independence into a weaponized tool for political advantage, where unfavorable judges might face unjust scrutiny or transfers. The impartiality of judicial proceedings, which is crucial to safeguarding citizens’ rights, may be compromised by this expanded parliamentary role in evaluating judges.

The influence of government over judicial appointments has sparked debates worldwide, and various countries have experienced significant struggles to protect judicial independence from executive control. India faced similar challenges when its executive sought greater authority over judicial appointments. In the landmark Supreme Court Advocates-on-Record Association v. Union of India (1993), India’s Supreme Court nullified parliamentary attempts to diminish judicial autonomy and reinforced the judiciary’s role in the appointment process. The subsequent “Third Judges Case” (1998) further entrenched the independence of judicial appointments by establishing the Collegium system, which enabled judges to collectively oversee judicial appointments and transfers. India’s judiciary emerged stronger from these conflicts, and many in Pakistan hope for a similar resilience from their courts.

An impartial judiciary is essential for any democracy to thrive. The 26th Amendment threatens to compromise this principle, as judicial independence serves as a foundational pillar of democratic governance. Without a judiciary that operates free from political interference, social order and accountability may erode, as the courts are a critical institution for monitoring the actions of other state bodies. With Pakistan’s political system already under considerable strain, an independent judiciary is paramount not only for upholding the rule of law but also for preserving public trust in the judiciary as a defender of rights. In a country where people have become increasingly disillusioned with the political system, the judiciary is often viewed as the final safeguard of justice.

The amendment’s potential impact on Pakistan’s democracy is profound. The judiciary’s role is not just a technical part of government; it represents the public’s hope for fairness and accountability. If judicial independence is eroded, it risks transforming the courts into another mechanism of political power, undermining democracy itself. This amendment’s true legacy—whether it will strengthen Pakistan’s democracy or push it towards centralized power—remains uncertain. The direction taken will likely shape Pakistan’s legal and political landscape for years to come as the nation grapples with the implications of this significant constitutional change.