The 26th Amendment: Politicizing Pakistan’s Judiciary?
The 26th Constitutional Amendment in Pakistan has started an intense constitutional and political debate, raising fundamental questions about the structure of state institutions, the independence of the judiciary, and the rule of law. Framed by the government as a move toward reform and democratization of the judicial appointment process, the amendment has, instead, provoked a wave of criticism from legal experts, former judges, constitutional scholars, and civil society, who argue that it contradicts the very spirit of the Constitution and threatens the foundational principle of separation of powers.
The amendment brought sweeping changes to Articles 175-A, 177, 193, and 209 of the Constitution, redefining the appointment process for judges in the superior judiciary. Notably, it replaced the historically established principle of seniority in the appointment of the Chief Justice of Pakistan with a process controlled by a newly formed Parliamentary Committee. This committee, dominated by members of the legislature and ruling coalition, is now empowered to select the Chief Justice, a departure from longstanding tradition and constitutional precedent. Furthermore, the composition of the Judicial Commission of Pakistan (JCP), the body responsible for nominating judges, has been overhauled to dilute the influence of sitting judges while increasing the role of members of Parliament and representatives of the executive. These provisions have been widely criticized as an attempt to politicize the judiciary by giving elected officials direct control over the composition and functioning of the judicial branch.
Lawyers across Pakistan have argued that the amendment poses a direct threat to judicial independence, a core constitutional value that underpins the democratic system. In a country where the judiciary has historically acted as a check on executive excess and legislative overreach, the insulation of judges from political influence is not merely symbolic—it is essential. Critics assert that the amendment upsets this balance by enabling the executive and legislature to exercise undue influence over who sits on the bench, what cases they hear, and how decisions are made on matters involving constitutional interpretation and fundamental rights. Several senior lawyers, including former Supreme Court Bar Association presidents, have stated that the move amounts to “judicial capture,” where an ostensibly independent institution is brought under the control of another branch of government.
The controversy surrounding the amendment has not remained confined to academic debate or barroom discussion; it has led to an unprecedented wave of litigation in the country’s courts. A series of constitutional petitions have been filed in the Supreme Court, seeking to annul the amendment on the grounds that it violates the basic structure of the Constitution. These petitions have been submitted by a broad spectrum of society—ranging from former parliamentarians and bar councils to human rights defenders, women lawyers, and civil society organizations. One of the main arguments advanced by the petitioners is that the Constitution of Pakistan, though amendable, contains “salient features” that are beyond the reach of even a two-thirds parliamentary majority. Among these immutable features, they argue, are judicial independence, federalism, democracy, and the separation of powers. In their view, the 26th Amendment fundamentally disrupts this architecture, thereby rendering it ultra vires—outside the scope of constitutional amendment.
The manner in which the amendment was passed has also become a point of legal and moral contention. Petitioners and commentators have alleged that the voting process in Parliament was marred by irregularities and coercion. Reports have surfaced of lawmakers being pressured or intimidated into voting in favor of the amendment, while some reportedly resigned under suspicious circumstances shortly after the vote. These events have given rise to allegations of legislative coercion, calling into question the validity of the amendment’s passage. Critics argue that if lawmakers were not free to exercise their constitutional right to vote without fear or duress, then the entire process stands compromised and must be re-evaluated by the judiciary. Furthermore, the absence of elected senators from Khyber Pakhtunkhwa at the time of the vote has been described as a constitutional lapse, with critics claiming that the lack of full provincial representation in the Senate violated the principle of federal parity, a cornerstone of Pakistan’s bicameral parliamentary system.
Beyond domestic opposition, the 26th Amendment has also drawn condemnation from international observers. The International Commission of Jurists (ICJ), a Geneva-based legal body that monitors judicial independence worldwide, stated that the amendment undermines Pakistan’s obligations under international human rights law. It warned that political interference in judicial appointments could jeopardize fair trial rights and weaken the judiciary’s ability to act as an impartial guardian of constitutional rights. The Office of the United Nations High Commissioner for Human Rights (OHCHR) has also expressed concern, emphasizing that judicial independence is a fundamental component of the rule of law in any democratic society and must be protected against encroachments from other branches of government.
In response to the mounting legal challenges, the Supreme Court has been asked to hear the case as a full bench, rather than a smaller panel formed under the very provisions being contested. Lawyers and petitioners argue that allowing a bench created through the amended judicial process to adjudicate its own legality would be a clear conflict of interest and undermine public trust in the outcome. They emphasize that only a full court, comprising all available judges, can authoritatively determine whether the amendment passes constitutional muster.
Civil society’s response has been equally strong. Prominent human rights activists, constitutional lawyers, and feminist legal advocates have joined forces to challenge the amendment, underscoring that it does not merely affect judges and courts—it affects every citizen who seeks justice in a system that must be independent and impartial. A group of twenty-eight women lawyers filed a notable petition, contending that the amendment perpetuates a concentration of power and obstructs democratic progress, especially in a society where access to justice remains unequal. Their petition also alleges that the procedural defects in the passage of the amendment—such as forced voting and a lack of quorum—render it null and void.
What further complicates matters is the political context in which the amendment was passed. It came at a time when the executive was facing growing resistance from the judiciary on several key matters, including the disqualification of lawmakers, electoral interference, and accountability proceedings. By asserting greater control over the judiciary, critics argue, the amendment appears to be an attempt by the political leadership to neutralize judicial oversight and ensure favorable outcomes in future legal disputes. This perception of encroachment, even if denied by the government, has contributed to deepening public mistrust in state institutions.
As the Supreme Court prepares to hear arguments in the coming months, the legal community awaits what could be a defining judgment in Pakistan’s constitutional history. The stakes could not be higher. A ruling that upholds the amendment may pave the way for further politicization of the judiciary, weakening its ability to check executive power. Conversely, a decision striking down the amendment would reinforce the judiciary’s role as a bulwark of constitutional integrity, but could provoke political backlash and raise questions about judicial activism.
Pakistan’s constitutional order has weathered many storms in its history—military takeovers, suspended parliaments, emergency rule, and political vendettas—but the 26th Amendment represents a unique test. It challenges not just the letter of the Constitution, but its spirit. At its heart lies the question of whether Pakistan remains committed to a judiciary that is free, fair, and fearless, or whether it is willing to sacrifice that independence at the altar of short-term political gain. The coming legal battles may very well determine the answer.
Disclaimer: The views and opinions expressed in this article are solely those of the author and do not necessarily reflect the editorial stance, policies, or official position of The Spine Times.
