The 26th Amendment: Progress or Peril for Judicial Independence?

Pakistan is at a pivotal moment in its Constitutional Evolution with the proposed 26th Amendment aiming to establish a Federal Constitutional Court (FCC). This amendment has intensified public discourse, particularly amid recent protests in Karachi underscoring a prevailing demand for judicial reform. While supporters highlight the potential for increased efficiency and strengthened rule of law, critics express concerns against infringement upon civil liberties and judicial independence. This opinion piece will explore the implications of these proposed amendments, weighing their advantages and disadvantages in shaping Pakistan’s legal future (constitutional and judicial trajectory). 

The 26th Constitutional Amendment Act, 2024 introduces significant changes aimed at restructuring Pakistan’s constitutional framework, judicial authority, and governance . One of the most prominent changes is the introduction of a new right under the Article 9A — “the right to a clean and healthy environment”—applicable to all persons, extending beyond citizens alone. Additionally, while Article 17 preserves the freedom of association, it reassigns the authority to adjudicate on political party formation from the Supreme Court to the new Federal Constitutional Court (FCC).

The amendment also restructures Article 63A, which originally penalized defectors in parliamentary voting by invalidating their votes. Under the proposed law, a defector’s vote will be counted. This shift represents a significant departure in managing political dissent within parties and reflects a broader attempt to reshape judicial and legislative processes governing political matters by placing such cases within the jurisdiction of the FCC.

A key feature of the 26th Amendment is the creation of the FCC in Islamabad which will serve as highest court for constitutional interpretations. The FCC will have jurisdiction over matters involving constitutional petitions, appellate review, and those falling under original jurisdiction of Article 184(3). Its authority will supersede that of the Supreme Court in many constitutional issues with all pending constitutional appeals transferred to the FCC. This amendment effectively repositions the positions the FCC as the ultimate authority on constitutional interpretation while maintaining the Supreme Court’s appellate jurisdiction in certain criminal cases. Furthermore, Judges of the FCC will be appointed by the Judicial Commission of Pakistan with the Chief Justice recommended by the National Assembly Committee from among the three most senior FCC Judges. FCC judges must retire at age 68, and those coming from the Supreme Court will serve a fixed term of three years. The first Chief Justice will be appointed by the President on advice of Prime Minister. Moreover, Article 68 imposes restrictions on discussions regarding the conduct of FCC judges mirroring protections already afforded to judges of the Supreme Court and High Courts, to uphold judicial independence.

In terms of judicial oversight, the amendment empowers the Supreme Judicial Council to review the conduct and performance of judges within FCC, Supreme Court, and High Court. Performance evaluations will be conducted annually, and unsatisfactory evaluations may be subject to performance improvement plans or removal by the President. The 26th Amendment also redefines the Supreme Judicial Council’s structure to include the Chief Justice of the FCC and the next most senior judge, establishing a hierarchical structure that centers judicial authority over the FCC. 

The amendments to the judiciary also include financial provisions. Article 78 assigns the FCC responsibilities for administering the Federal Consolidated Fund, while Article 81 updates provisions concerning judicial offices, elections, and fiscal matters to facilitate FCC’s additional roles. Article 100 broadens eligibility criteria for the Attorney-General to include individuals qualified for the FCC. he amendment further introduces governance and military-related changes, with Article 243 reaffirming the federal government’s authority over the command of the armed forces, and Article 248 broadens legal immunity for high-ranking officials related to their official duties. These measures reinforce the legal framework for governmental authority and ensures military command remains under parliamentary oversight.

The proposed amendment reduces the minimum age for the appointment of High Court judges from 45 to 40 years allowing a wider pool of eligible candidates and requiring that one-third of appointees come from the district judiciary. Article 114 extends restrictions on discussions concerning judicial conduct to provincial assemblies, ensuring a uniform code of conduct for judges at all levels. Furthermore, the President can now transfer High Court judges between courts upon recommendations of Judicial Commission, eliminating the need for prior consent from the judges.

Another key change is the restriction on Suo Moto Actions by the High Courts under Article 199, limiting their authority to act independently. Moreover, High Courts will no longer have the authority to issue orders on national security matters to ensure that sensitive decisions remain under executive control. Further consolidating judicial power, the FCC will assume jurisdiction over writ petitions.

Evaluating the changes, it is evident that each carries potential advantages and disadvantages. On the positive side, the establishment of FCC through Article 17 and 176A focuses on constitutional issues, relieving the Supreme Court’s workload and improving efficiency. Additionally, the amendments enhance judicial independence by limiting parliamentary discussions on judicial conduct (Articles 63A, 68, 204), protecting the judiciary from political interference. Streamlining judicial appointments (Articles 175A, 177A, 179A) aims to reduce delays in filling vacancies and to ensure timely justice as per Article 10A of the Constitution. Additionally, clarifying the division of powers between courts (Article 184) will help minimize jurisdictional conflicts, promoting legal certainty and consistent rulings. 

However, the amendments pose significant concerns. The creation of the FCC could overlap with the Supreme Court, ultimately leading to confusion, inconsistent constitutional interpretations and undermining legal certainty. Limiting parliamentary oversight of judicial conduct (Articles 68, 114) may reduce judicial accountability, leading to unchecked judicial authority and disrupting the balance of power essential to a constitutional democracy. Furthermore, the concentration of power in the presidency (Articles 48, 243), especially concerning military appointments, raises issues about the separation of powers and the potential for executive overreach, threatening necessary checks and balances against power abuse. 

Moreover, prohibiting “Suo Moto” actions by High Courts (Article 199) weakens their ability to address matters of public interest, potentially delaying justice in urgent cases. The flexible criteria for judicial appointment could allow the Prime Minister to select candidates arbitrarily, further compromising judicial independence. The provisions assigning power to ban political party to the Constitutional Court reflects ongoing political tensions, particularly with the PTI party. If enacted, these amendments could undermine fundamental rights and political freedoms, raising concerns about the underlying intentions behind these changes.

Recently, the Lawyers Action Committee (LAC) in Karachi protested against the proposed constitutional amendments, claiming they aim to “manipulate the judiciary for political gain.” They voiced concerns over the possibility of extending the current Chief Justice’s tenure through unconstitutional means, which they see as a threat to judicial independence. The LAC advocated for Justice Mansoor Ali Shah to succeed Justice Qazi Faiz Isa upon his retirement and labelled the amendments as an “assault on the independence of the Supreme Court.”

The Karachi Bar Association (KBA) criticized the “secretive” introduction of the amendments, claiming it violates parliamentary protocol. In a resolution, they warned that changes, especially those extending justices’ age limits, threaten constitutional principles and judicial independence. They emphasized that amendments should be made with consensus and transparency, arguing that the lack of disclosure to parliament and the public is a constitutional violation.

Following an inter-provincial meeting, the Sindh Bar Council (SBC) called for Justice Mansoor Ali Shah’s appointment as the new Chief Justice. The SBC also requested a ban on reappointments of all government employees, including retired judges and generals, urging the government to consult legal representatives and stakeholders before implementing any judicial amendments.

In essence, the proposed 26th Amendment to Pakistan’s Constitution represents a significant shift in the country’s legal framework, with both potential benefits and substantial concerns. While the establishment of the Federal Constitutional Court (FCC) aims to enhance judicial independence and modernize governance, critics, including the Karachi Bar Association and the Lawyers Action Committee, have raised concerns over its impact on judicial accountability and the separation of powers. The amendment’s lack of transparency and the manner of its introduction has fueled fears of political manipulation and threats to judicial autonomy. As the legal community calls for careful deliberation and consensus, it is crucial to balance the intended reforms with the preservation of democratic principles and the integrity of Pakistan’s constitutional system. The outcome of this debate will shape not only the judiciary’s future but also the fundamental rights and freedoms of its citizens.