- By Ali Inan
In a landscape marked by contrasting emotions of applause, jeers, sardonic comments, and accusations of coercion, the 26th Amendment has finally taken its place in Pakistan’s constitutional record, albeit without unanimous support. This latest constitutional alteration raises critical questions about the future of judicial independence, democratic integrity, and the separation of powers that underpin Pakistan’s governance.
From its earliest days, Pakistan’s constitutional development has been a complex journey shaped by both progress and setbacks. A history marked by moments of judicial independence and parliamentary assertion is juxtaposed with instances of subordination to powerful institutions and individuals. In this landscape, dissent has often been stifled, and political goals achieved through a blend of legitimate and dubious tactics. Pakistan’s legal framework has continually evolved, but with a trajectory that reflects a struggle for genuine democratic governance amid pressures from various quarters.
As far back as 1978, legal scholar GW Chaudhry captured this reality with the phrase, “Pakistan has become a laboratory of constitutional experiments.” Since its inception, Pakistan’s constitutions, legal codes, and policy frameworks have often been drafted to suit particular individuals or narrow interests, reflecting a pattern of governance where lasting democratic norms remain elusive. The country has experimented with differing political systems, from presidential governance to legal structures imposed under martial law. Only after the devastating loss of East Pakistan did an elected government under the leadership of Shaheed Zulfikar Ali Bhutto manage to craft a constitution based on national consensus.
The Constitution of 1973 was born of a shared commitment, a vision Bhutto championed with support from all parliamentary factions, rendering it an almost sacred text for Pakistan. Its essence was such that even military rulers, despite suspending or dismissing it at times, ultimately reinstated the Constitution. This spirit of consensus was revived with the 18th Amendment in 2010, which was passed with broad political support.
These foundational amendments preserved core principles, asserting that sovereignty resides with Allah, enshrining federal and parliamentary democracy, ensuring judicial independence, and maintaining a clear separation of powers. The Constitution’s preamble explicitly states, “the independence of the judiciary shall be fully secured,” embedding judicial autonomy as a pillar of governance.
The judiciary’s independence was later affirmed in the influential Al-Jihad Trust case, where the Supreme Court underscored the necessity of an impartial judiciary in upholding the rule of law and safeguarding fundamental rights. The Court advocated for a transparent, merit-based process for judicial appointments, leading to the establishment of a practice whereby the senior-most judge is appointed Chief Justice of the High Court. Article 175 of the Constitution further reinforced this principle by mandating the judiciary’s separation from the executive.
The 2010 Eighteenth Amendment Act introduced Article 175-A, setting up a Judicial Commission and a Parliamentary Committee to oversee appointments of judges to the High Courts and the Supreme Court. Following the Court’s interim order, the 19th Amendment enhanced this framework by expanding the Supreme Court to improve the judicial appointment process. In another landmark case, Munir Hussain Bhatti vs. Federation, the Court ruled that the Judicial Commission’s recommendations were binding, ensuring that the Parliamentary Committee could not exercise veto power over judicial appointments.
However, the 26th Amendment marks a significant departure from these advancements. It introduces measures that weaken Article 175-A, shifting from a seniority-based system to one where the Chief Justice is appointed by the Special Parliamentary Committee from among the three most senior Supreme Court judges. This shift places the judiciary’s independence on uncertain ground, raising concerns about potential encroachments on judicial autonomy.
The amendment modifies the judicial appointment process that previously required the Judicial Commission to submit nominations to an eight-member parliamentary committee. Now, the Judicial Commission’s recommendations go directly to the Prime Minister, who then forwards them to the President for formal appointment. In addition, a new Special Parliamentary Committee has been created, consisting of 12 members—eight from the National Assembly and four from the Senate—with government-backed representatives likely holding a majority.
Other critical adjustments in the 26th Amendment include limitations on the Supreme Court’s power to take suo motu action under Article 184(3), thereby restricting its ability to intervene in urgent matters. Additionally, the amendment modifies Article 186-A, allowing the Supreme Court to transfer cases from High Courts to itself, which could potentially diminish the High Courts’ jurisdiction. Constitutional Benches are to be established within the Supreme Court and High Courts under this amendment to oversee specific constitutional and advisory cases.
Unlike the 18th Amendment, which was ratified with broad consensus, the 26th Amendment was pushed through amid controversy, reportedly employing political maneuvers to secure the necessary votes. This raises questions about the legitimacy of a process that appears to have sidelined parliamentary consensus, potentially undermining the authority of the legislative body itself.
Significantly, this amendment dilutes Article 184(3), which previously empowered the Supreme Court to act independently in cases involving violations of fundamental rights. By now involving both the executive and legislative branches in judicial appointments, the amendment risks disrupting the delicate balance of powers enshrined in Pakistan’s Constitution.
Legal expert Makhdoom Ali Khan offers a sobering perspective, observing that “there is always a drift towards totalitarianism.” He warns that while order is essential for governance, true order cannot be achieved without trust and fair, impartial institutions. “Domination may bring order, but without trust and inclusive, neutral institutions, it leads to tyranny,” he asserts. Khan’s words resonate as a reminder that an authoritarian approach may control but cannot cultivate a just rule of law.
Public trust in the 26th Amendment is noticeably lacking, particularly among those who see it as a potential roadblock to protecting individual rights and promoting democratic values. While amending a constitution is part of any democracy’s evolution, how these changes are implemented and the power balance they establish are crucial to maintaining a robust democratic framework.
In reshaping judicial appointments and curtailing judicial independence, the 26th Amendment risks weakening the constitutional foundation on which Pakistan’s democracy rests. The power balance that has traditionally upheld judicial, executive, and legislative branches as distinct entities is now in question. Without meaningful political inclusivity and impartial institutions, the amendment could pave the way for an era where political dominance overshadows judicial independence and, by extension, the protection of fundamental rights.
As Pakistan moves forward, it must consider the broader implications of such amendments. The principles of justice, inclusivity, and respect for constitutional checks and balances must not be sacrificed for political expediency. The 26th Amendment’s impact on Pakistan’s legal landscape may have far-reaching consequences, shaping the nation’s democratic ethos for years to come.
- The writer is a PhD scholar in English Literature, a Lawyer, and an International Relations analyst.