26th Constitutional Amendment: Content and Controversies
Introduction
The 26th Constitutional Amendment Bill was passed by both the Senate and the National Assembly with a two-thirds majority, despite initial resistance from the JUI-F (Jamiat Ulema-e-Islam-Fazl). The bill originally proposed 56 amendments, but after extensive deliberations, the number was reduced to 22. The amendment aims to restructure several aspects of the judicial system, including curbing the Supreme Court’s suo motu powers, capping the Chief Justice of Pakistan’s (CJP) term to three years, and granting the Prime Minister a role in appointing the CJP from among the three most senior judges.
Context of the Passing of the 26th Amendment
No doubt, the government rushed the amendment process to meet an arbitrary deadline, potentially to pre-empt upcoming changes in the judiciary’s leadership, there was a historical context to this amendment which must be kept in view before passing any judgement
1. Concerns Over Judicial Encroachment
There was growing apprehension among civil society, political parties, and the establishment that the superior judiciary was gradually overstepping its constitutional boundaries. With the military establishment stepping back from direct political involvement, the judiciary began to fill the vacuum, asserting itself in areas traditionally outside its remit.
Judicial activism, especially the use of suo motu powers, was perceived as undermining the authority of elected institutions. While the PML-N and PPP had been primary targets of this activism, other political parties also became wary of the judiciary’s increasing influence in political matters.
2. Supremacy of Parliament
The judiciary often professed support for the principle of parliamentary supremacy in legislative affairs, but its actions during political crises suggested otherwise. The Supreme Court was seen as overreaching, particularly during critical moments like the vote of no-confidence, where its involvement in political disputes was viewed as a direct challenge to parliamentary authority.
Political forces increasingly viewed the judiciary as an obstacle to the exercise of Parliament’s constitutional role, furthering the push for reforms aimed at reasserting parliamentary supremacy.
3. Judiciary’s Focus on Political Over Constitutional Matters
The Supreme Court spent significant time dealing with political matters, often under the guise of constitutional issues. This led to delays in resolving regular cases, with ordinary citizens left waiting for justice as the courts prioritized politically sensitive cases.
The judiciary’s preoccupation with high-profile political cases exacerbated the backlog of regular cases, which lingered for years, undermining the judiciary’s core function of delivering timely justice to the people.
4. Lack of Transparency in Judicial Appointments
The process for appointing judges was seen as lacking transparency, with the Chief Justice of Pakistan wielding disproportionate influence. The near-absolute power of the Chief Justice in deciding who would be appointed or confirmed led to concerns about fairness and accountability.
The 26th Amendment sought to address this by introducing a new system involving a parliamentary committee, ensuring greater scrutiny and debate in the appointment process. Although the new system has its critics, it marks a shift towards more transparency and checks in judicial appointments.
5. Restoring the Image of Superior Courts
The superior judiciary’s reputation had suffered due to its perceived judicial activism and handling of politically charged cases disguised as constitutional matters. This partisanship drew open criticism from legal circles, with lawyers openly challenging the judiciary’s integrity.
The superior courts, once seen as guardians of the constitution, were increasingly viewed as partisan actors, undermining their prestige and credibility. This tarnished the standing of the judiciary, placing it under scrutiny and further eroding public confidence in the institution after the parliament.
Thus, the 26th Amendment was passed in response to widespread concerns over judicial overreach, political interference, and a lack of transparency in the judiciary. The amendment seeks to reassert the supremacy of Parliament, curb judicial activism, and restore the credibility of the judicial appointment process, though it remains a controversial solution.
Main Provisions of the Amendment
Some of the main amendments made in the Constitution are as follows
1. Appointment of the Chief Justice of Pakistan
Under the 26th Amendment, a Special Parliamentary Committee consisting of 12 elected representatives, four from the Senate and 12 from the National Assembly, shall be formed to decide the name of the Chief Justice of Pakistan. Parliamentary parties shall have proportional representation on the committee, based on their strength in Parliament, to be nominated by their respective parliamentary leaders. The chairman and the speaker of the National Assembly, as the case may be, shall notify members of the committee”.
Instead of the previous practice of the president appointing the most senior judge of the Supreme Court as the CJP, the top judge will now be appointed on the recommendation of the Special Parliamentary Committee from among the three most senior SC judges. The Committee shall send the nomination of the Chief Justice of Pakistan, by the majority of not less than two-thirds of its total membership, within 14 days before the retirement of the CJP. It shall send the name of the nominee to the prime minister who shall forward the same to the president for the appointment. The Amendment caps the CJP’s term at a maximum of three years, regardless of the age of the appointee. This mandatory retirement after three years aims to bring regularity to the turnover in the judiciary’s leadership.
2. Formation of Constitutional Benches in SC
As per new Article 191A, Constitutional Benches of the Supreme Court, comprising Judges of the Supreme Court will be formed to hear the constitutional issues brought before them. The Constitutional Benches may comprise an equal number of Judges from each province, and the most senior judge among the judges nominated shall be the Presiding Judge of the Constitutional Benches. These Constitutional benches will exercise following jurisdictions vested in the Supreme Court”, namely:
(a) original jurisdiction of the Supreme Court under Article 184;
(b) appellate jurisdiction of the Supreme Court under clause 3 of Article 185, where a judgment or order of a high court passed under Article 199 involves the constitutionality of any law or a substantial question of law as to the interpretation of the Constitution; and
© advisory jurisdiction of the Supreme Court under Article 186.
Accordingly, all petitions, appeals or review applications against judgments rendered or orders passed, to which clause 2 applies, pending or filed in the Supreme Court before commencement” of the 26th Amendment would now stand transferred to the Constitutional Benches and shall only be heard and decided by these constitutional benches.
3. Suo Motu Powers of Superior Courts
One of the more controversial amendments affects Article 184, limiting the Supreme Court’s ability to take suo motu actions (initiating cases on its own). Now, the court can only act if an application is filed, reducing its power to intervene in matters without a formal request. Similar restrictions are placed on the High Courts, which lose their suo motu powers under amendments to Article 199. Like the Supreme Court, they can now only act when an application is formally filed.
4. Appointment of Supreme Court Judges
The 26th Amendment introduces significant changes to the appointment process for Supreme Court (SC) judges. While the Chief Justice of Pakistan (CJP) remains the chairperson of the Judicial Commission of Pakistan (JCP), a “presiding judge” is now added as a member, and the number of senior SC judges in the JCP has been reduced from four to three. The role of a former CJP or SC judge in the commission has been removed, while the qualification for a senior advocate from the Pakistan Bar Council has been specified as requiring at least 15 years of SC practice.
The law minister and attorney general remain members, but amendments now incorporate lawmakers into the process, including two members each from the Senate and National Assembly, representing both the treasury and opposition benches. Additionally, a woman or non-Muslim technocrat will be included in the commission, nominated by the Speaker of the National Assembly. An explanation was also added, clarifying that if the presiding judge is among the three most senior SC judges, the next judge in seniority will become a member.
6. Appointment of High Court Judges
The proposed amendments to Article 175A introduce changes to the procedure for appointing high court judges by replacing the “most senior judge” with the “head of Constitutional Benches” as a member of the Judicial Commission. If the head of Constitutional Benches is the chief justice of the high court, the next senior judge will become a member. Additionally, if the high court chief justice is unavailable, they will be substituted by a former chief justice or judge nominated by the Commission. The minimum age for high court judges has been reduced from 45 to 40 years, and the requirement of civil service experience for appointment has been removed. For the Islamabad High Court, the nomination process now includes a federal minister appointed by the prime minister and a high court advocate with 15 years of experience, nominated by the Islamabad Bar Council.
7. Changes in Federal Shariat Court and Council of Islamic Ideology
The 26th Amendment introduces key changes to the Federal Shariat Court (FSC) and the Council of Islamic Ideology (CII). For the FSC, an amendment to Article 203C allows an FSC judge to be qualified for appointment as a Supreme Court judge. Article 203D now mandates that appeals against FSC rulings on laws repugnant to Islam must be resolved within 12 months, after which the decision will take effect unless suspended by the Supreme Court. For the CII, an amendment to Article 229 lowers the threshold for referring a law for Islamic advice from two-fifths to one-fourth of the membership of a parliament or provincial assembly. Additionally, Article 230 now requires the CII’s final report to be considered within 12 months after submission.
8. Performance Evaluation of the High Court Judges
The newly inserted clauses establish a comprehensive framework for the performance evaluation of high court judges. The Judicial Commission is mandated to conduct annual performance evaluations. If a judge’s performance is found lacking, the Commission will allow a period for improvement, and if no improvement is seen, the matter is referred to the Supreme Judicial Council. To guide these evaluations, the Commission is authorized to set up effective performance standards and establish a secretariat to manage its operations.
Additionally, a third of the Commission’s members can request a meeting, which must be convened within a specific time frame, ensuring accountability in the process. The Commission members are also empowered to nominate candidates for anticipated or actual vacancies in superior courts.
Critical Appreciation of the 26th Amendment Bill
The Statement of Objects and Reasons added as a preamble to the 26th Constitutional Amendment explains the reasons for this amendment. It emphasises the longstanding demand from civil society and other stakeholders to improve the criteria for appointing judges to the Superior Courts, increase transparency in the appointment process, and give Parliament a more significant role. The statement also underscores the need for an effective performance evaluation mechanism for high court judges, with provisions for their removal if found inefficient in dispensing justice. It highlights a growing backlog of cases in higher courts, stressing the necessity for constitutional benches to focus on significant constitutional and political matters, allowing the courts to address ordinary litigants’ cases more efficiently.
Additionally, the statement calls for structuring the jurisdiction of the Supreme Court and high courts under Articles 184(3) and 199. It notes that seniority has ceased to be the sole benchmark for appointing high court chief justices and advocates for a consistent practice in appointing the Chief Justice of Pakistan based on seniority, with Parliament involved in the nomination process. Lastly, it addresses the pressing issue of climate change, emphasizing that Pakistan is both deeply affected and positioned to act, justifying the inclusion of a new Article that guarantees the right to a clean and sustainable environment.
The 26th Amendment is a mix of genuine judicial reforms and potential political manoeuvring. It increases the role of parliament in judicial appointments, including that of the CJP, while attempting to introduce accountability within the judiciary. The reduction of judicial activism, which some viewed as bordering on “Judicial Martial Law” due to the removal of elected prime ministers by the judiciary, is a key aim. These changes, however, have raised concerns about undermining judicial independence.
Critics argue that the government rushed the amendment process to meet an arbitrary deadline, potentially to pre-empt upcoming changes in the judiciary’s leadership. More time should have been devoted to consensus-building, but despite suspicions of ulterior political motives, the amendment passed through proper democratic channels, involving consultations and deliberations across the political spectrum.
By introducing special constitutional benches, a practice common in other countries, the amendment seeks to free up the Supreme Court to focus on its backlog of cases. The court has historically spent more time on constitutional matters, many of which were politically charged rather than legal.
Concerns and Dissenting Views
Despite the potential benefits, the 26th Amendment is seen by many as a setback for judicial independence. Critics argue that by returning judicial appointments to the executive’s domain, the amendment risks allowing political interference in the judiciary. The process of appointing the CJP from a pool of three judges, instead of the traditional seniority-based method, could lead to favouritism and power struggles within the judiciary.
Appointing the CJP through a parliamentary committee gives the government undue influence over the judiciary. Given that the government is often a litigant before the Supreme Court, having a say in appointing its judges creates a clear conflict of interest. Moreover, allowing the government to participate in judicial performance evaluations opens the door to biased assessments, particularly against judges who issue rulings unfavourable to the government.
Instead of depoliticizing the judiciary, critics argue that the amendment allows the government to exert greater control over judicial appointments and assessments. The reconstitution of the Judicial Commission gives the government a stronger role in determining the composition of constitutional benches, potentially allowing it to influence which judges hear politically sensitive cases.
The creation of constitutional benches independent of the CJP could also lead to administrative issues and cause division within the Supreme Court. There are questions about how the CJP’s authority will be preserved, especially in times of judicial crisis.
Conclusion
The 26th Amendment Bill has sparked intense debate and raised concerns about judicial independence. PTI, despite boycotting the vote, acknowledged that the bill was an improvement over earlier drafts but retained reservations about the judges’ selection process. While the bill passed with 22 amendments, it remains to be seen how the changes will impact the judiciary, especially concerning the appointment of judges and the CJP. The tension between ensuring accountability and maintaining judicial independence is at the heart of the controversy surrounding the 26th Amendment.
From the book “Pakistan Affairs: 25 Essays”, published by Amazon and available at
