The Senate of Pakistan’s recent passage of the 26th Constitution Amendment Bill has sparked significant controversy and debate within the country. This amendment, which limits the tenure of the Chief Justice of Pakistan to three years, has been met with opposition from various political parties, particularly those aligned with former Prime Minister Imran Khan.
The bill’s passage was secured with a two-thirds majority in the Senate, a requirement that necessitated the support of key political allies. Despite facing opposition from within their own parties, Jamiat Ulema-e-Islam-Fazl and Balochistan National Party-Mengal ultimately voted in favor of the amendment. This unexpected support played a crucial role in ensuring the bill’s success.
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. Critics argue that limiting the Chief Justice’s tenure could undermine the judiciary’s ability to function as a check on the government’s actions. Supporters of the amendment, however, contend that it is necessary to prevent the judiciary from becoming overly powerful and encroaching upon the executive’s domain.
The 26th Constitutional Amendment introduces significant institutional changes within Pakistan’s judicial system, particularly affecting the Supreme Court and High Courts. These changes significantly increase political influence over the process of judicial appointments and the judiciary’s own administration. This increased political interference erodes the judiciary’s capacity to function independently and effectively as a check on the government’s actions.
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.
Furthermore, 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.
These changes have significant implications for the judiciary’s role as a protector of human rights. 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. The inclusion of political representatives in the JCP raises concerns about the potential for political considerations to influence judicial appointments. Critics argue that this increased political involvement could lead to the selection of judges who are more amenable to the government’s agenda, rather than those who are solely qualified on the basis of their legal expertise and integrity.
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.
Such a system is inherently flawed, as it allows a litigant, such as the government, to indirectly influence the appointment of the very judge who will preside over their cases. This raises questions about the fairness and impartiality of the judicial process. This is particularly concerning given the government’s history of using the judiciary to serve its political interests.
Barrister Asad Rahim offered a scathing critique of the 26th Amendment, emphasizing its detrimental impact on judicial independence. He asserted that the amendment effectively overturns the post-Musharraf consensus, marking a significant reversal in efforts to strengthen the judiciary’s independence.
Rahim argued that the amendment places the appointment of judges back in the hands of the executive branch, a practice that history has shown to be fraught with potential for political interference. He warned that this return to executive control undermines the judiciary’s ability to function as an impartial arbiter of justice.
Furthermore, Rahim expressed concern about the new mechanism for selecting the Chief Justice. The process of choosing the CJP from a list of three candidates, he argued, is likely to create a climate of political intrigue and competition, jeopardizing the stability and impartiality of the judiciary
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. By granting greater control over the judiciary’s leadership and caseload, the amendment risks compromising the judiciary’s ability to function as an impartial arbiter of justice and a check on the government’s actions.
The establishment of a commission that includes government representatives to evaluate the performance of superior court judges as per the 26th constitutional amendment raises significant concerns about the potential for government interference in the judiciary. Such a system could create a climate where the government effectively wields the power to reward or punish judges based on their performance evaluations. This could lead to a situation where the government targets judges who have issued unfavorable rulings by issuing negative evaluations, undermining the judiciary’s independence and eroding public confidence in the fairness and impartiality of the justice system.
The 26th Constitutional Amendment represents a significant setback for judicial independence. Despite their purported aim of “depoliticizing” the judiciary, these amendments have the opposite effect. They are a clear attempt to exert control and influence over the superior judiciary.
An attack on judicial independence is inherently an attack on fundamental rights. A judiciary that is not independent cannot dispense justice without fear or favor. This has far-reaching implications for all citizens, as it undermines the rule of law and the protection of individual rights.
To safeguard the future of Pakistan’s democratic governance and the well-being of its citizens, it is imperative that these amendments be repealed or significantly revised to restore the judiciary’s independence. A strong and independent judiciary is essential for ensuring the rule of law, protecting human rights, and promoting development. By undermining the judiciary’s independence, the 26th Constitutional amendments threaten the very foundations of Pakistan’s democracy.