PR Explainer
26th Constitutional Amendment: What and Why?
Abhiruchi Chowdhury
On 20 October, the 26th Constitutional Amendment got approval from two-thirds in both the Senate and the National Assembly. Sixty-five members of the Senate had voted in favour of the Constitutional Amendment, while four had opposed it. In the National Assembly, 225 members supported the amendment, while 12 members from PTI and Sunni-Ittehad Council (SIC) opposed it. It received the assent of President Asif Ali Zardari on 21 October and became a law.
What is the 26th Constitutional Amendment all about?
The 26th Constitutional Bill has 27 clauses in total has three key provisions.
First, the amendment would now fix the period of Chief Justice of Pakistan (CJP) for three years. The Chief Justice, once assigned, could continue to complete the designated term unless he resigns or attains the age of 65.
Second, a constitutional bench would be formed within the Supreme Court instead of constitutional courts. The appointment of judges would take place through the Judicial Commission, which would also have the power to monitor the judge's performance.
Third, to increase the legislature's involvement, the 12-member special parliamentary committee would appoint the incoming CJP from the three most senior Supreme Court judges. The CJP candidate must secure a two-thirds majority in the Special parliamentary committee. The committee would consist of a CJP, the four most senior judges serving in the Supreme Court, two Members of the National Assembly, and two senators where one of each would be from an opposition party, Law Minister, Attorney General, a technocrat from outside the Parliament and a member appointed by National Assembly speaker who would be from a marginalized community/ minority or a woman.
What is the background of the 26th Constitutional Amendment?
The government cites two key reasons for introducing the amendment. First, the current judiciary has become over-politicized. Second, the number of cases related to the interpretation of the Constitution has overworked the judiciary, which has led to delays in resolving the petitions of the plaintiffs. The previous PDM (Pakistan Democratic Movement) government made multiple attempts to curtail the powers of the Supreme Court. In 2023, the PDM government introduced a bill Supreme Court (Practice and Procedure) bill; the objective was to revoke the powers of the Chief Justice of Pakistan (CJP) to take Suo moto actions and form benches.
In its earlier draft, the government had proposed establishing Constitutional courts. However, it could not gather enough votes for passing the same. The idea of establishing Constitutional courts began with the signing of the Charter of Democracy by the former Prime Ministers PPP’s Benazir Bhutto and PML-N’s Nawaz Sharif. It proposed setting up a federal constitutional court with equal representation from every province. The thought process behind this idea was that matters related to the interpretation of the Constitution would be heard by this court, whereas routine matters would be heard by the Supreme Court and other high courts.
What have been the responses?
First, PTI anticipates inbound disagreements over which cases would be taken up by the constitutional bench. The party was not happy with how the amendment was passed and claimed that the Government forced members of Parliament to vote in favour of the amendment and not according to their will. Five PTI-backed MNAs who had voted in favour of the amendment.
Second, the legal community has made a serious reservation. The erstwhile President of the Supreme Court Bar Association saw the amendment as an attempt by the government to control the judiciary and argued that the interpretation of the Constitution is involved in every other case, not just in civil and criminal pleas.
Third, The Human Rights Commission of Pakistan (HRCP) had also expressed their apprehension over possible political influence on the constitutional bench owing to the judges' selection procedure, eventually leading to a dip in their fairness. It further voiced its concern over the composition of the Special Parliamentary Committee, which is proposed to include members from the Senate and National Assembly, which would lead to the overreach of Parliament and undermine the independence of the judiciary.
Fourth, the United Nations has expressed its fear that the amendments might lead to a forfeiture of the autonomy of the judiciary in Pakistan. The International Commission of Jurists have ridiculed the passing of the Constitutional Amendment in Pakistan and sees it as an attack on the independence of the judiciary.
What’s Next?
The passing of the amendment has divided both the legal and political communities. In the legal community, some see it as a positive step, mainly for bringing parliamentary superintendence to the appointment of the judiciary and ensuring the accountability of the judges. Others are still skeptical as the new rule for appointing judges might lead to a rise in political favours by the judges for judicial appointments. Critics of the amendment also fear that it might lead to the development of a parallel system since the Chief Justice would not have complete supremacy over the nomination of judges in constitutional benches.
In the political community, while the ruling coalition parties and JUI-F have celebrated the passing of the amendment, PTI and Jamaat-e-Islami have expressed strong reservations. The latter also voiced skepticism over PTI’s submission of names for the Special Parliamentary Committee and decided to file a petition against the passing of the amendment.
It now remains to be seen whether these amendments will ensure judicial accountability or further weaken the independence of the judiciary in Pakistan.
References
Nadir Guramani, “Ruling Coalition’s efforts fruitful as 26th Constitutional Amendment finally sails through parliament,” Dawn, 20 October 2024
After Senate, “NA passes 26th constitutional amendment bill just before dawn,” The NewsInternational, 20 October 2024
Nadir Guramani, “ICJ derides ‘blow to judicial independence’ as 26th Constitutional Amendment becomes law https://www.dawn.com/news/1866652/president-zardari-gives-assent-to-26th-constitutional-amendment,” Dawn, 21 October 2024
Basil Nabi Malik, “Constitutional courts: a good idea?,” Dawn, 24 June 2023
Haseeb Bhatti, “Law aimed at clipping CJP’s wings ‘sustained as being constitutional’: SC rules in majority verdict,” Dawn, 11 October 2023
Salahuddin Ahmed, “Constitutional Package – judicial overhaul or national suicide?,”Dawn, 17 September 2024
Sumair Abdullah, “Explainer: What are ‘judicial reforms’ in the new amendment,” Dawn, 21 October 2024
Umer Mehtab, “Changes to election laws cannot retroactively undo reserved seats verdict: SC,” Dawn, 18 October 2024
“PTI Senator Ali Zafar opposes constitutional amendment, calls process unconstitutional,” The Express Tribune, 20 October 2024 Syed Irfan Raza, “PM Shehbaz thanks PTI-backed MNAs for support on amendment,” Dawn, 23 October 2024
Nasir Iqbal and Wajih Ahmad Shah, “Choice of new CJP splits the legal community,” Dawn, 24 October 2024
Ishaq Tanoli, “Lawyers fear amendment will bring judiciary under govt control,” Dawn, 25 October 2024
“Obscure Criticism,” The Nation, 24 October, 2024
Zebunissa Burki, “Balancing act or power grab? Experts analyze 26th amendment,” The News International, 21 October 2024
“JI to file petition against 26th Constitutional Amendment,” The News International, 24 October 2024
“26th Amendment,” The News International, 21 October 2024