26th Amendment

With the Senate passing the now almost infamous 26th Amendment Bill on Sunday evening and the National Assembly set to vote on it as this editorial is being written, it may be an understatement to say that this amendment marks a new chapter in the relationship between the judiciary and the legislature. At its core, the amendment bill seeks to introduce much-needed reforms in the judiciary, including a fixed three-year term for the chief justice of Pakistan (CJP) and greater parliamentary oversight in judicial appointments. While hailed by some as a victory for parliamentary sovereignty, it has also sparked concern about the potential erosion of judicial independence. The 26th Amendment has been a long time in the making, with months of political back-and-forth between government allies and opposition parties – the PTI of course opting to sit this out despite efforts by the PPP and JUI-F to bring the party on board. The provision for a fixed three-year term for the CJP, one of the key features of the amendment, has generated substantial debate. Supporters of the amendment argue that it introduces much-needed accountability and transparency in the judiciary’s operations, emphasising the importance of parliamentary involvement in judicial appointments and asserting that parliament has the right to play its role in shaping the country’s highest legal offices. The logic behind this, they say, is that the judiciary should not function in isolation from democratic oversight.

On the other hand, legal experts and opponents of the amendment express valid concerns about the potential for undermining the judiciary’s independence. The judiciary, they argue, serves as a vital check on legislative and executive overreach. By limiting the CJP’s term and allowing parliament a more direct role in appointments, critics fear that judicial impartiality could be compromised and that judicial independence is one of the pillars of democracy, and diluting it could have far-reaching consequences for rule of law in Pakistan. One of the more contentious elements of the amendment is the formation of constitutional benches and restructuring of the Supreme Judicial Council. While the bill’s proponents claim that these reforms will streamline judicial processes and bring justice closer to the people, opponents see it as a dangerous precedent for parliamentary overreach. There has also been much concern and conversation regarding there being a ‘presiding judge’ for the constitutional bench and that ‘presiding judge’ not necessarily being the CJP since that too will be decided by the committee. The proposal to allow the legislature to suggest names for the CJP, drawn from the three most senior judges of the Supreme Court, is particularly divisive. Legal purists argue that judges should remain insulated from political influence, and this provision potentially opens the door to such interference.

The 26th Amendment that is likely to be passed by the time Sunday is over is a ‘diluted’ version of what the government’s initial draft was, which had been called draconian and undemocratic by critics and which had led to the drawn-out negotiations in the first place. If the government had been transparent from the beginning, the process might have been less contentious and the outcome more widely accepted. Ultimately, the 26th Amendment is a momentous but polarising development. Whether it will usher in a more accountable judiciary or diminish the independence of one of the country’s most critical institutions remains to be seen. What is certain is that the delicate balance between the judiciary and the legislature has been irrevocably altered. As the amendment’s provisions take effect, it will be vital to closely monitor how these changes impact the judiciary’s functioning and, most importantly, the public’s trust in its ability to deliver justice impartially. The coming years will be a critical test of whether these reforms truly serve the public interest or merely reflect the shifting tides of political power.