Constitutional crossroads

The 26th Amendment to Pakistan’s constitution is more than a procedural adjustment – it represents a seismic shift in the balance of power between parliament and the judiciary.

Passed with a two-thirds majority and signed by the president, the amendment redefines the judicial appointment process, limits the scope of judicial review for certain cases, and mandates that only a constitutional bench, not a full court, may hear challenges to amendments. This change has set the stage for a potentially explosive constitutional showdown, especially as elements within the judiciary and the legal community seek to challenge it.

The 26th Amendment seeks to address long-standing concerns over judicial groupings and internal power dynamics within Pakistan’s judiciary. Previously, the process of judicial appointments often led to the elevation of junior judges favoured by influential chambers, creating an imbalance that some argue has compromised judicial independence. Over the years, these ‘junior judges’ played pivotal roles in cases that favoured senior justices, further entrenching a select group’s influence over the judiciary.

To counteract this, the 26th Amendment allows judicial appointments based on merit from among the top three senior judges, not automatically the most senior. This provision aims to reduce the influence of entrenched factions and reinforce the role of parliamentary authority in judicial oversight. However, it also restricts the chief justice’s ability to form a full court for cases challenging constitutional amendments, limiting the court’s flexibility in addressing high-stakes constitutional issues.

This amendment has become a flashpoint in the age-old struggle between parliamentary supremacy and judicial independence. Pakistan’s constitution grants parliament the power to amend laws with a two-thirds majority, reflecting the collective will of the people. However, the judiciary has historically acted as a guardian of constitutional principles, ensuring that parliament’s actions do not undermine rule of law or the separation of powers.

Critics argue that the 26th Amendment infringes on judicial independence by restricting the judiciary’s power over its appointments and its discretion to form full benches. However, supporters claim it is necessary to prevent the judiciary from becoming a self-governing entity detached from democratic accountability, as it ensures a more balanced representation in judicial appointments.

If a constitutional petition challenges the 26th Amendment, it places the chief justice in a particularly difficult position. The chief justice, appointed under the amended guidelines, has taken an oath on the amended constitution and thus is bound to uphold its provisions, including those introduced by the 26th Amendment. If the judiciary, led by a chief justice appointed under this amendment, were to overturn it, it would be seen as undermining the very basis of his/her own appointment.

This potential conflict of interest is further complicated by the amendment’s restriction on bench formation. A three-member committee, not the full court, is responsible for deciding whether a petition challenging the amendment will be admitted. If this committee comprises judges whose appointments were influenced by the amendment, questions of impartiality arise, as they might be seen as motivated to uphold the amendment to protect their own positions.

Should the judiciary move to nullify the 26th Amendment, it could lead to far-reaching consequences. Given the amendment’s explicit provisions regarding judicial appointments and bench formation, overturning it would fundamentally challenge parliament’s authority and could provoke a significant political response from the government. This might escalate to the declaration of a state of emergency, with the constitution potentially put in abeyance – a situation Pakistan has encountered before and one that would bring severe consequences.

A declaration of emergency would disrupt the democratic process and rule of law, eroding public confidence in Pakistan’s political stability. Beyond the domestic impact, it could damage Pakistan’s international standing, as investors and foreign partners generally view emergency measures and constitutional suspensions as indicators of political instability. The economic implications could be profound, further complicating Pakistan’s efforts toward growth and stability.

This challenge to the 26th Amendment underscores the need for a delicate balance between parliament and the judiciary. Judicial independence is a cornerstone of democratic governance, ensuring that laws are interpreted and applied fairly, without political interference. However, parliamentary supremacy reflects the will of the electorate and is essential for maintaining democratic legitimacy.

The current situation calls for restraint and careful consideration on both sides. By respecting the amended constitution, the judiciary can honour its oath while remaining mindful of the balance of power. Similarly, parliament might consider addressing legitimate concerns about judicial independence without provoking further conflict. Dialogue and cooperation are crucial to preventing an institutional standoff that could destabilise Pakistan’s democratic system.

The 26th Amendment reflects a deliberate attempt to reassert parliamentary authority over judicial appointments and curtail potential judicial overreach. While it may address some issues of institutional balance, it also presents significant risks if challenged in court. Ultimately, Pakistan’s political and judicial leadership must recognise that the country’s stability depends on mutual respect between branches of government.

If the judiciary moves forward with hearing a petition to challenge the amendment, it must do so with caution, aware of the consequences. Any move to overturn the amendment could prompt a political response that risks putting the constitution itself in abeyance. Pakistan has faced this scenario before, and it is one that must be avoided to preserve democratic stability and public trust.

In this critical moment, both parliament and the judiciary are responsible for safeguarding the integrity of Pakistan’s democracy. An escalation to emergency measures would mark a setback for democratic governance, eroding years of progress. To avoid this outcome, Pakistan’s leaders must prioritise collaboration over confrontation, ensuring that both parliamentary supremacy and judicial independence are maintained in a way that strengthens the country’s democratic foundation.

The writer is an entrepreneur.