Following weeks of upheaval, the coalition government in Pakistan successfully passed the controversial 26th Constitutional Amendment Bill in the Senate. This decision came just hours after the federal cabinet approved the bill, which is expected to be passed by the National Assembly to become law. The amendment package proposes a series of changes to the constitutional framework, notably concerning the tenure and appointment of the Chief Justice of Pakistan (CJP) and the evaluation of judges’ performances.
The bill, which has been informally dubbed the Constitutional Package, was the product of discussions among a special parliamentary committee formed last month. This committee comprised representatives from all political parties, including the Pakistan Tehreek-e-Insaf (PTI), although PTI opted not to participate in the voting process. The bill’s passage reflects a consensus among various political factions, which had previously struggled to find common ground during initial attempts to push through more radical reforms.
The amendments include setting the Chief Justice’s term at three years and establishing a 12-member parliamentary committee responsible for selecting the CJP from a panel of the three most senior judges. This committee will comprise eight members from the National Assembly and four from the Senate. The proposed CJP will then be forwarded to the prime minister for approval, who will subsequently seek the president’s confirmation.
Despite the apparent collaboration among political parties, the amendments have sparked considerable debate regarding their implications for judicial independence in Pakistan. Legal experts have raised alarms, asserting that these changes could significantly undermine the judiciary’s autonomy, a crucial pillar of democracy. Barrister Asad Rahim has described the amendment as a “body blow” to the country’s constitutional order, marking the end of a post-Musharraf consensus that had previously sought to shield the judiciary from political influence. He argues that returning the selection of judges to the executive branch, which has a history of interference in judicial matters, could lead to a new era of political maneuvering within the judiciary.
Moreover, the mechanism for selecting the Chief Justice, where the parliamentary committee chooses from a shortlist of three, has been criticized as an invitation for political intrigue and favoritism. Critics contend that this process will result in a judiciary that prioritizes compliance over impartiality, with judges who may align more closely with the ruling party’s interests. Rahim’s comments underscore a pervasive concern among legal scholars: the judiciary, previously considered a neutral arbiter, risks becoming a tool of the state.
Lawyer Moiz Jaferii highlights that the current draft of the bill retains fundamental flaws that compromise judicial independence. The original proposal aimed to establish a separate apex court, effectively diminishing the Supreme Court’s authority. Jaferii argues that the continuous involvement of a parliamentary committee in the appointment of the Chief Justice and the selection of judges to hear constitutional matters signals a troubling trend toward legislative overreach into judicial affairs. The fear is that the independence of the judiciary, which is vital for safeguarding constitutional rights, is being systematically eroded under the guise of parliamentary supremacy.
Legal expert Rida Hosain emphasizes that the bill’s implications extend beyond the mechanics of appointment. The government’s majority control over the parliamentary committee poses inherent conflicts of interest, particularly since the government is often a litigant before the Supreme Court. This conflict raises serious ethical questions about whether a litigant should have the power to choose the head of the judicial institution that adjudicates its disputes.
Furthermore, the provision allowing a commission with government representatives to evaluate the performance of superior court judges raises alarms about potential politicization. Hosain argues that such oversight effectively gives the government the power to reward or punish judges based on their rulings, undermining the integrity of judicial proceedings. The professed aim of the amendments to “depoliticize” the judiciary stands in stark contrast to the reality of increased government influence.
The proposed Constitutional Amendment has drawn criticism for its intention to emasculate the judiciary further. Lawyer Mirza Moiz Baig points out that the restructured judicial commission will oversee appointments and determine the composition of constitutional benches, effectively placing the government in control of which judges hear cases involving its interests. This not only raises concerns about impartiality but also suggests a broader trend of entrenching political power at the expense of judicial autonomy.
While some legal experts acknowledge that the latest draft of the bill is less extreme than earlier proposals, they caution against complacency. Lawyer Basil Nabi Malik notes that significant concerns remain regarding the role of the parliamentary committee and its potential to disrupt the unity of the judiciary. The disconnect between the CJP and the newly formed constitutional benches may create administrative challenges and undermine the CJP’s authority during crises.
The passage of the 26th Constitutional Amendment Bill is not merely a legislative event; it signals a critical juncture for Pakistan’s democracy and constitutional order. As the government asserts its influence over the judiciary, the implications for judicial independence, the rule of law, and the protection of fundamental rights remain profound. The amendments risk entrenching a political culture that prioritizes control over accountability, jeopardizing the fundamental tenets of democracy and the principles that underpin a fair and impartial justice system. In this context, the future of Pakistan’s judiciary appears fraught with challenges, necessitating vigilance from legal professionals and civil society to safeguard the independence and integrity of the judicial system.