Balancing act or power grab? Experts analyse 26th Amendment

KARACHI: Legal opinion on the 26th Amendment stands divided, with proponents highlighting the benefits of limiting judicial discretion, introducing parliamentary oversight, and monitoring judicial performance. Critics, however, fear that the amendments could lead to political interference in judicial appointments, create internal divisions, and undermine judicial independence, and that the constitutional benches could be manipulated for political gains.

The 26th Constitutional Amendment Bill introduces amendments regarding the tenure and appointment of the chief justice of Pakistan (CJP), the evaluation of judges’ performances, and the creation of constitutional benches within the Supreme Court.

The amendment bill had, even before being tabled, garnered a lot of debate. With there being drafts in circulation, the final one is thought to be a somewhat toned-down version of the original government-drafted bill.

So how do lawyers and legal experts see this amendment?

Former attorney general Ashtar Ausaf Ali spoke with Geo News on Sunday night and said that, for him, there could have been more to the amendment. “The original draft had the provision for a federal court and I have long been a proponent of the fact that for federal laws there should be a separate court”. However, He said that “at least with this amendment, the discretions will be limited.” Ausaf also spoke about there now being “an element of oversight”, explaining that “earlier, judges were predominantly involved in the appointment of judges”, but that “around the world, you see there is parliamentary oversight in this matter”.

On the question of judges’ performance being monitored, Ashtar Ausaf not only supported that but also asked why, if this happens in all other institutions, it can’t happen in the judiciary as well.

On being asked if the reserved seats case goes back to the Supreme Court would it go to the constitutional bench now, Ausaf explained that a constitutional bench would be the one to see that -- and that the “system of clarifications” would end.

Ashtar Ausaf also said that this amendment of the constitution cannot be declared unconstitutional by the Supreme Court, asking on what basis that would be done.

Looking at the process of how the amendment was managed, PILDAT President Ahmed Bilal Mehboob tells The News that the approval of the 26th Amendment became “quite smooth” after the government and its allies’ agreement with the JUI-F. “I think that the consultative process among the parties during the past few weeks made a major contribution to the refinement of the draft amendments. Maulana Fazalur Rehman and Bilawal Bhutto Zardari stand out as two key persons who played a decisive role in developing consensus”. He adds though that it is “rather sad that two BNP senators voted apparently against the direction of the party”.

Calling the constitutional amendments “certainly more tempered than the original draft”, Supreme Court advocate Basil Nabi Malik says that even so “there are certain aspects that will raise concerns within the judicial and legal community”. According to him, these include “the role of the special parliamentary committee in selecting the chief justice of Pakistan from the top three judges” which he says would “open the way for judicial politicking and internal politics as opposed to appointments on the basis of judicial competence”.

Malik also feels that “the disconnect between the chief justice’s authority and the constitutional bench’s nominations, role and functioning” will raise questions of unity within the ranks and “raise anxiety regarding administrative harmony, as well as running the risk of creating parallel systems”.

This, says lawyer Salaar Khan, will be a “parallel hierarchy within the existing high courts and the Supreme Court with separate ‘presiding judges’ who do not have to be the chief justice”.

What he fears is that whether in terms of initial appointment to the courts, or to be made the chief justice, or a presiding judge, or in terms of getting to serve on a constitutional bench, “judges will now be beholden to politicians”.

Essentially, says Salaar, “counterbalancing the power and roles of the judiciary, parliament, and the executive is a delicate task” and that while the amendment may be an improvement on the original drafts, “it doesn’t approach that balance with the considered care that it deserves”.

For Barrister Ali Tahir, these amendments are “unconstitutional, being violative of the basis structure of the constitution”. He gives a more detailed review of the amendments in themselves. For example, he says that “extensive changes are made to Article 175A to govern the process for the appointment of judges to the Supreme Court and high courts, in part to embarrass difficult judges for the executive by including the performance evaluation of judges of the high courts and that too by changing the structure of the Judicial Commission that recommends appointments of Supreme Court judges”.

Hafiz Ahsaan Ahmad Khokhar, constitutional expert and advocate for the Supreme Court, however sees in the 26th Amendment an attempt by parliament to “restore a balance between the judiciary and parliament”.

Khokhar does not see any violation of the judiciary’s independence in these amendments. In fact, he tells The News that a “fair system has been put in place for the appointment of chief justices and the elevation of judges to the Supreme Court, which will ultimately reduce criticism of the judiciary in relation to bench composition, appointment practices, particularly at the chief justice of Pakistan’s office”.

Barrister Tahir calls this a “person-centric amendment” aimed at “stopping Justice Mansoor Ali Shah from becoming the chief justice of Pakistan, as the chief justice will now be nominated from among the three most senior judges of the Supreme Court by a Special Parliamentary Committee”.

But what Barrister Tahir finds “the most horrific” is Article 191A -- introduced to create constitutional benches in the Supreme Court. This, he says, “gives the internal working of the Supreme Court in the hands of the executive and legislature. Clearly, in such constitutional cases the government will now have the most comfortable benches”. Tahir asks how these benches can ensure the fundamental rights of the citizens (especially those belonging to the opposition) “when the benches inclusion and exclusion is with powers outside of the court”.

These are the reasons Barrister Tahir gives for his assessment that a “super majority of the Supreme Court will set aside these amendments for violation of the basic structure of the constitution”.

Khokhar does not agree with this and calls these amendments “the only way forward because the division of constitutional jurisdiction proceeds from the Supreme Court to the high courts, ultimately minimising the backlog of cases and expediting the administration of justice for the general public”.