Unpacking Pakistan’s 26th Constitutional Amendment: A Constitutional Crossroads

Introduction

In recent months, Pakistan has been facing extreme controversy surrounding the “26th Constitutional Amendment”. The Amendment has said to spark widespread debate across political and legal circles, throughout Pakistan. In addition to restricting the judiciary’s independence, the amendment seeks to give the Executive branch previously unheard-of and extensive powers. The checks and balances system, which is essential to a democratic framework’s efficient operation, is likely to be compromised by these developments.

Additionally, the amendments have triggered a rift between the state and legal professionals and increased tensions between the government and the opposition. Numerous legal experts have cautioned that the amendments may endanger Pakistan’s Rule of Law and judicial independence.

The removal of former Prime Minister Imran Khan from power in 2022 signaled the beginning of Pakistan’s constitutional crisis, which was followed by political unrest and uncertainty. Throughout this time, the Supreme Court has played a pivotal role in defending the Constitution, frequently intervening to settle conflicts and stop additional instability. This problem worsened with the 2024 General Elections, as many questioned the validity of the results and sought justice in court over purported irregularities.

The Merits and Pitfalls:

The 26th Constitutional Amendment brings significant reforms to Pakistan’s judicial system, particularly in Article 175A, which governs the appointment of Supreme Court judges. The Judicial Commission consisted of the Chief Justice, four senior SC judges, a former Chief Justice, who was nominated by the CJ and senior judges, the Law Minister, the Attorney General, and a Senior Advocate nominated by the Pakistan Bar Council for a two-year term before the amendment. It has provided for a presiding judge, reduced the number of senior SC judges from four to three, and required at least 15 years of SC practice from the Senior Advocate. The appointment process will now have two members each from the Senate and National Assembly. This change raises serious concerns of undermining the constitutional principle of Separation of Powers by allowing the legislative and the executive branches greater influence in judicial appointments, potentially hampering the independence and impartiality of the judiciary.

The proposed constitutional amendments were controversial, especially in terms of a fixed term for the CJP and raising the retirement age of Supreme Court judges from 65 to 68. According to critics, these changes were politically motivated and designed to extend the tenure of Justice Qazi Faez Isa, who has been accused of favoring the incumbent government. Currently, Article 179 sets the retirement age for the CJP and other judges at 65. The amendment introduces a new mechanism: the CJP will retire either at the age 65 or after serving a three-year term, whichever comes first. This fixed tenure seems beneficial on its face, ensuring turnover in judicial leadership and allowing other judges to become CJP. It addresses concerns about prolonged tenures and potential stagnation.

A potential problem under the new amendments is that of Chief Justices who complete their 3-year term but are not yet at retirement age, which is 65. It is still unclear whether the person would continue to serve as a judge or retire altogether. If they were to continue sitting, then questions arise about the practicality and fairness of their position. Would a former Chief Justice agree to demotion and subordination to judges who previously worked under them? The position could create tension in the judiciary and raise questions on issues of hierarchy. The amendments did not clarify this position as it leaves the status of the retired Chief Justice ambiguous about serving under such a condition.

The 26th Constitutional Amendment makes a major change to Article 175A, clause (3), which previously guaranteed that the “most senior Judge of the Supreme Court” automatically became the Chief Justice of Pakistan (CJP). Now, the CJP will be appointed from among the three most senior judges based on the recommendation of a Special Parliamentary Committee, subject to approval by the Prime Minister and the President. This change introduces political influence into the appointment process. Governments may now appoint a CJP who aligns with their interests, potentially undermining impartiality. Coupled with the CJP’s authority to form judicial benches, this could give those in power undue control over case outcomes, weakening the judiciary’s role as a check on the executive and legislative branches. This would invalidate the separation of powers and erode public trust in the judiciary.

The abolition of suo motu by the 26th Constitutional Amendment is another reform. The frequent use of suo motu in politically sensitive cases, such as the disqualification of PML-N leader Nawaz Sharif, raised concerns of judicial overreach and political bias. This unchecked use of suo motu powers led to fears that the judiciary was intruding into the domains of the executive and legislature, often under the guise of public interest litigation. Removing these powers ensures that law-making is done by the parliamentarians and not by the judges.

The 26th Constitutional Amendment revises Article 177 to address concerns over Supreme Court appointments. Previously, judges with 15 years of High Court practice could be appointed to the SC without direct Supreme Court experience, raising concerns about their preparedness for the complex demands of the apex court. The lack of familiarity with Supreme Court procedures, constitutional interpretation, and appellate review could result in less experienced judges presiding over critical cases.

The amendment corrects this anomaly by insisting that judges appointed to the Supreme Court must now have a minimum of 15 years of practice as advocates in both the High Court and the Supreme Court. This means that appointees are not only seasoned legal professionals but also well-acquainted with the workings and procedures of the Supreme Court itself. This is a constructive step forward, as now the quality of judicial appointment will improve and only experience and relevant persons will go to the highest judiciary in this country.

The 26th Constitutional Amendment introduces Articles 191A and 202A to create Constitutional Benches within the Supreme Court and within the High Courts. Under Article 191A, these Supreme Court benches will have equal representation from each province, with judges selected by the Judicial Commission and presided over by the most senior judge. They will handle constitutional matters, including original jurisdiction (Article 184), appellate (Article 184(3)), and advisory cases (Article 186), ensuring balanced, diverse panels for nationally significant cases.

Article 202A similarly establishes Constitutional Benches in the High Courts, again appointed by the Judicial Commission, to hear cases under Article 199. The Provincial Assemblies shall have the power to decide the procedure for such benches and the benches may be made to work flexibly.

The establishment of dedicated Constitutional Benches can potentially solve a long-standing problem of delayed constitutional case hearings. At present, a heavy backlog exists, with a large number of constitutional cases pending before the courts. Just as there are specialized benches, for civil, criminal, or banking matters, it becomes logical to have a specially dedicated forum for constitutional questions, which are inherently complex and important. These dedicated benches will not only remove the burden from general benches but also promote better organization and efficiency in working out constitutional disputes. This specialized approach will, therefore, hasten the judicial process, improve the judicial system’s efficiency, and make the judicial system cohesive in general.

However, there is a concern over the impartiality of the Constitutional Benches because many of the cases they will handle involve the government or politically significant issues. There is a potential conflict of interest with parliamentarians involved in the Judicial Commission that nominates judges. The fear is that political influence in the selection process may compromise the integrity of the Constitutional Benches and undermine impartiality in their rulings.

The 26th Amendment reconstitutes the Supreme Judicial Council (SJC), which now includes the Chief Justice of the SC, the next two senior SC judges, and the two most senior Chief Justices from the High Courts. The new SJC can inquire into the conduct or capacity of SC and High Court judges on its initiative, based on reports from the Judicial Commission, or the direction of the President. If a judge is adjudged unfit on grounds of incapacity, poor performance, or misconduct, his removal is possible by the President. However, the obscure definitions of “inefficient” performance or misconduct introduce subjective and inconsistent enforcement.

Conclusion:

While it is important not to let judges oversteer into public policy, it is equally important not to permit politicians to have unchallenged power. The 26th Amendment seriously threatens the Rule of Law in Pakistan, under which those who hold office have to function within some system of law and are thereby responsible for known rather than subjective or political authority. Giving Parliamentarians an influence in the selection of judges tends to render independent the judiciary, subjected to political personalities who select judges. This shift erodes the checks and balances vital to restraining government power, replacing the Rule of Law with the Rule of Authority.

Pakistan is already seeing such trends take shape—anti-establishment protests are violently silenced, media is controlled through censorship, and dissidents are either silenced or taken into custody. In such scenarios, the judiciary is the final bastion of the citizenry, and an independent judiciary is required; however, with politicians using the judiciary as a political platform to appoint judges, it becomes a tool in the hands of the ruling authority that would further lead to governance by whims and fancy rather than the rule of law.

Dwight D. Eisenhower’s warning is particularly apt: “The world no longer has a choice between force and law; if civilization is to survive, it must choose the rule of law.” Pakistan stands at a crossroads. If the judiciary loses its independence, the country risks descending into authoritarianism, where the rule of the powerful supersedes justice and accountability. The future of Pakistan’s legal system—and indeed the nation’s stability—depends on whether it can uphold the principles of justice or succumb to unchecked power.