The 26th Amendment: A Blow to Judicial Independence

The 26th Amendment, introduced under the jargon of reform, has politicized judicial appointments, restrained the High Courts’ powers, and da...

The 26th Amendment, introduced under the jargon of reform, has politicized judicial appointments, restrained the High Courts’ powers, and damaged collegiality within the Supreme Court itself.

Written By Ifra Chaudhry

Pakistan's chequered judicial history has always struggled for freedom from political pressure, but the 26th Amendment has made the grip of political shackles on judicial independence stronger than ever. This amendment, masked as a reform, was passed in haste, has sparked the much needed criticism both at home and abroad.

The curtailment of suo moto powers exacerbated the already hollowed situation of human rights in Pakistan where enforced disappearances, extrajudicial violence, curtailment of freedom of expression, discrimination against women and minorities and unlawful use of political influence are prevalent. As the rule of law index 2024 already rated Pakistan 129^th out of 142 countries. Suo moto powers, sometimes excessively used, were also crucial to keep a check on executive and legislature stepping out of their respective domains. Now, thanks to this hastily passed amendment, matters of public interest (including time sensitive cases) will face undue delays just to get through the excessively layered filters of biased approvals. Prior to the 26th Amendment, Supreme Court and High Court Judges could promptly take suo motu action on matters of public importance where fundamental rights were in question. Also, this suo motu action could be taken by a single Judge. However, due to this amendment, only larger constitutional benches can exercise this power. Consequently, making the process slower and bureaucratic.

Relatively more damage is done due to the new system for appointment of Chief Justice of Pakistan. The eradication of the principle of seniority and elevated role of parliament in such appointments has set the alarms off. Previously, the Seniority Principle was followed and the senior most Judge became Chief Justice of Pakistan, but now the process is politicized as parliament nominates one from the three senior most judges. There was no doubt that the often-criticized seniority principle indeed provided stability and predictability. Similarly, the appointment of the Islamabad High Court Chief Justice has been subjected to political bargaining by involving the Federal Minister and senior counsel in the process. The amendment also allows for the transfer of judges under influence of executive powers which has also resulted in Islamabad High Court’s CJ’s appointment. When judges’ careers become reliant on political factors, judicial independence becomes woefully absent.

This damage is not confined to constitutional text alone; it is evidently visible within the Supreme Court itself. Justices Syed Mansoor Ali Shah and Munib Akhtar recently wrote a letter accusing CJP Yahya Afridi of ignoring the Supreme Court’s Practice and Procedure Committee’s decision, which they argue was legally binding. The Committee had decided that petitions challenging the legality and validity of the 26th Amendment must be heard by a Full Court. However, Chief Justice Afridi has been hesitant to do so, claiming that it would damage “judicial collegiality” and open the gates to further public scrutiny. Instead, he has sought to have the matter heard by a Constitutional Bench. Ironically, a body created under the very 26th Amendment.

The process for the formation of constitutional benches is also changed as instead of natural rotation, Chief Justice can select the judges for benches, hence causing cherry-picking. This change has caused the sidelining of most respected jurists like Justice Mansoor Ali Shah, Justice Munib Akhtar, and Justice Athar Minallah. By controlling who gets to hear the constitutional cases, the quality of judgments and public trust are at stake. Historically, the judiciary has always claimed the power to determine the validity of constitutional amendments in light of the “basic structure” doctrine. That pedigree is long-standing. Yet today, the recipe has visibly changed: political forces are openly at play. Resultantly, the rift within the judiciary will only deepen if this matter continues to be treated as a fait accompli.

Moreover, this amendment has further eroded the fabric of public trust in the judiciary, as people increasingly question whether the institution is truly independent or merely functioning under political pressure. International criticism has also grown louder: UN Human Rights Chief Volker Türk has stated that the amendment “seriously undermines” judicial autonomy, while the International Commission of Jurists has described it as a “blow” to the judiciary’s ability to keep a check on unlawful political maneuverings. Both condemnations point to a further decline in Pakistan’s already damaged democratic structure.

In short, the 26th Amendment, introduced under the jargon of reform, has politicized judicial appointments, restrained the High Courts’ powers, and damaged collegiality within the Supreme Court itself. If the petitions questioning the validity of this amendment continue to be sidelined or shifted to a Constitutional Bench, the rifts within the judiciary will only deepen. A Full Court review is the need of the hour, if the judiciary does not wish to stand by as a bystander to its own weakening by political powers.