he 26th Constitutional Amendment could diminish independence of the Judiciary before it succumbs to overwhelming parliamentary dominance. Like the mythical last song of a dying swan, the Judiciary’s ability to serve as a counterbalance to parliamentary power may be fading. The new legal framework tilts heavily in favour of the parliament. In democratic systems across the globe, one of the key tenets that ensures their stability is the balance of power among various branches of government, particularly between the Legislature, the Judiciary and the Executive. Over-concentration of power within a single branch undercuts this balance and disrupts democratic governance.

In constitutional monarchies, like the United Kingdom, which operate as a unitary parliamentary democracy, parliamentary sovereignty is a core doctrine of the constitutional framework. However, even in a system that places vast legislative power in the hands of the parliament, checks and balances are critical. For example, although the British Parliament can legislate on any matter, the Judiciary has developed the doctrine of implied repeal to curtail the possibility of one parliament binding a future parliament.

Since the UK’s judiciary was given expanded powers through the Constitutional Reform Act 2005, which established the Supreme Court and removed judicial functions from the House of Lords, there has been a concerted effort to ensure judicial independence. A similar equilibrium should be maintained in Pakistan. The 26th Amendment undermines the independence of the Judiciary by empowering a parliamentary committee to select the next chief justice of Pakistan. In Marbury vs Madison (1803), the United States Supreme Court asserted its authority of judicial review, affirming that it is the Judiciary’s role to declare what the law is. The 26th Amendment dilutes the separation of powers in Pakistan by politicising the highest appointments in Judiciary.

Germany, another stable democracy, is built on the Grundgesetz (Basic Law), which enshrines a carefully structured federal system that emphasises both parliamentary democracy and judicial review. The Federal Constitutional Court of Germany holds the ultimate power of constitutional interpretation. It can annul legislation that it deems unconstitutional. This provides a firm check on the Bundestag’s (Germany’s Parliament) legislative powers. The idea that one branch of government should not dominate the others stems from the principle of checks and balances rooted in Montesquieu’s theory of the separation of powers. The recent amendments in Pakistan allow the parliament to exert considerable control over the Judiciary. The SPC, with its parliament members, could nominate judges based on political convenience rather than merit, bypassing the constitutional safeguards that once protected the independence of the Judiciary. This erodes the doctrine of separation of powers.

The dangers posed by a legislative overreach can be seen from instances in India. Although the Indian constitution initially granted significant powers to the parliament, the Judiciary has continuously pushed back against efforts to diminish its authority, particularly through the development of the Basic Structure Doctrine established in Kesavananda Bharati vs State of Kerala (1973). This doctrine prevents the parliament from altering the constitution’s fundamental features, including the separation of powers, rule of law and judicial independence. The Judiciary in Pakistan has not developed comparable jurisprudence to counterbalance legislative overreach. The amendment’s removal of suo motu powers under Article 184 of the constitution effectively weakens the Judiciary’s ability to intervene in matters of public importance without waiting for formal petitions.

The idea that one branch of government should not dominate the others stems from the principle of checks and balances rooted in Montesquieu’s theory of the separation of powers. The recent amendments in Pakistan allow the parliament considerable control over the judiciary.

The amendments to Article 175-A of the constitution are particularly concerning, as they grant the parliamentary committee disproportionate control over judicial appointments. The lack of specified criteria for these appointments undermines the rule of law, one of the key components that form the foundation of democratic governance. In constitutional democracies, the Judiciary often serves as a bulwark against the Executive and Legislative overreach. Once the parliament determines who ascends to the highest judicial office, the Judiciary’s role as an independent interpreter of the constitution is fundamentally compromised. Nemo judex in causa sua, meaning no one should be a judge in their own cause. The risk of parliament selecting judges who may be inclined to protect the Legislature’s interests rather than upholding impartial justice is unacceptable.

Equally problematic is the amendment to Article 48, which earlier shielded parliamentary and executive decisions from judicial scrutiny. This effectively renders the parliament immune to legal challenges over certain decisions. This violates the principle of ubi jus ibiremedium (where there is a right, there is a remedy). By denying the Judiciary the ability to question Executive advice given to the president, the Parliament and the Executive consolidate power unchecked by legal recourse. In robust democracies, legal remedies provide essential checks on legislative and executive overreach. For example, in the United States, the Judiciary can declare executive orders unconstitutional through judicial review. Similarly, the Federal Constitution Court in Germany frequently reviews government actions for their constitutionality, ensuring that the parliament and the executive do not exceed their bounds. The 26th Amendment dangerously weakens the legal protections, leaving citizens without effective remedy against potential abuse by the government.

Another pertinent issue is the amendment to Article 215, which permits members of the Election Commission of Pakistan to remain in office indefinitely if no successor is appointed. This creates a situation where a parliamentary deadlock can prolong the tenure of electoral officials, undermining the credibility of the electoral process. A similar concern arose in the United States with prolonged vacancies on the Supreme Court due to a political deadlock in the Senate. In democracies where the Executive and the Legislature fail to agree on key appointments, judicial intervention can provide a resolution. The latest amendment has curtailed the Judiciary’s capacity to intervene in such political stalemates, risking electoral dysfunction and democratic backsliding.

In light of these examples from various democracies, it is clear that parliaments should not wield unchecked power. The doctrine of judicial independence is a cornerstone of democratic governance, ensuring that laws are interpreted and enforced impartially. When a legislature dominates the judiciary it risks creating a parliamentary autocracy, where laws are made and enforced by the same political entity, negating the independent oversight that protects fundamental rights.

While legislative authority is essential in a democracy, unchecked parliamentary power can destabilise democratic institutions and erode public trust in governance. Recent constitutional amendments have shifted the balance of power decisively in favour of the parliament, undermining the doctrine of separation of powers and judicial independence. Stable democracies provide clear examples of how robust checks and balances, judicial review and independent institutions are crucial to the proper functioning of a democracy. Without these, democratic governance may be reduced to authoritarianism, where the legislature becomes the sole, unchallengeable authority, eroding both the rule of law and fundamental rights.

The writer is the CEO at ZAK Casa and Verde as well as a managing partner at the Lex Mercatoria law firm.