The Story of the 26th Amendment: Executive Interference and the Judiciary’s Struggle for Independence in Pakistan

As Pakistan’s parliament passes a controversial constitutional amendment in an extraordinary overnight session, concerns emerge over the scope and speed of these sweeping changes to the judiciary. Critics fear undue executive influence through reshaping judicial appointments and curtailing the Supreme Court’s powers, while supporters hail the reform as a long-overdue assertion of parliamentary supremacy. The current situation—emerging from a history of disputed elections and military influence—therefore poses a deep challenge to the judiciary’s resilience, with profound implications for constitutional order in Pakistan – write Neha Tripathi and Anubhav Kumar

During an extraordinary overnight session on 21 October 2024, Pakistan’s National Assembly passed the controversial 26th amendment to the 1973 Constitution. Experts, lawyers and the opposition have vehemently protested, calling it the ‘biggest attack on the constitution’ and a severe blow to the independence of the judiciary. In contrast, the jubilant Prime Minister hailed the newly passed “constitutional package” as a historic day for Pakistan’s democracy, describing it as the step that has finally reaffirmed the supremacy of parliament as envisaged by the Constitution. Another senior leader, Bilawal Bhutto, likewise asserted that the “reform” will be instrumental in curbing undemocratic forces within the judiciary and rekindling cooperation between the executive and judiciary.

26th Constitutional Amendment: Opening Pandora’s box

The 26th Constitutional Amendment has introduced a series of radical changes to the structure and operation of Pakistan’s judicial system that critics contend will politicize the higher courts and pave the way to undermine judicial independence. The amendment significantly alters the composition of the Judicial Commission, which nominates judges for appointment to the Supreme Court and High Court. Previously, the Commission comprised nine members—six from the judiciary and three non-judicial members (the federal law minister, the attorney general, and a representative of the Pakistan Bar). However, the amendment removes one judicial member and adds five new members: two from the National Assembly, two from the Senate, and one woman or non-Muslim member nominated by the Speaker of the National Assembly. As a result, seven of the Commission’s members are now appointed by the legislature and executive, effectively making the judicial members a minority in the selection process and increasing political influence over judicial appointments.

The amendment significantly alters the composition of the Judicial Commission, which nominates judges for appointment to the Supreme Court and High Court.

The amendment also changes how the Chief Justice is chosen. Rather than appointing the most senior Supreme Court judge as Chief Justice by default, a “special parliamentary committee”—made up of eight members of the National Assembly and four members of the Senate—selects the Chief Justice from among the three most senior judges. Furthermore, the Chief Justice now serves a fixed three-year term, in contrast to retirement at the age of 65, effectively mandating their retirement after this period. In addition, the amendment curtails the power of the Supreme Court of Pakistan to deliver complete justice by limiting its power to make an order or give direction on its own initiative (suo moto). Other notable changes include the creation of dedicated constitutional benches within the Supreme and High Courts, potentially delegating constitutional issues to judges deemed more favourable to the government, as well as the introduction of “inefficient” performance of duties as grounds for removal of judges—previously, only “incapacity” or “misconduct” could justify removal. Experts therefore believe that these “reforms” are a body blow to the constitutional order of Pakistan.

It is important to note that the state of democracy and constitutional order in Pakistan has generally been at a crossroads, frequently shaken by internal and external issues spanning from the compromised election of 2018 to the arrest of former Prime Minister Imran Khan. Historically, the Supreme Court of Pakistan has played a significant role in the constant battle to ensure an independent judiciary, stable democracy and vibrant constitutional ethos—often under the shadow of military intervention. In this context, judicial (and other constitutional) appointments in Pakistan are extremely contentious and cause shockwaves as soon as political intrigue reaches a certain crescendo. The judiciary in Pakistan has endeavoured to insulate itself from such interference, making this new amendment a severe jolt to decades of efforts.

The Previous Judicial Appointment Process in Pakistan

Historically, the executive had absolute control over the appointment of judges. This dominance was significantly diluted by the 1996 Al-Jehad Trust case, where the Court ruled that judges must be appointed “in consultation” with the Chief Justice of Pakistan. Although this arrangement lasted for a decade or so, the judiciary had to battle to assert its autonomy from the executive under General Musharaff’s regime. Significant changes appeared after the Musharaff era when, through the 18th constitutional amendment and later the 19th constitutional amendment, the Supreme Court had greater control over the Judicial Commission and established through custom that the senior-most judge of the Supreme Court would become Chief Justice of Pakistan. The new regime of appointment, therefore, in the garb of reform, attempts to part ways with transparency in the appointment process, incentivizing judges to curry favour with the executive of the day.

The Quick death of constitutional order in Pakistan

It would be misleading to interpret this constitutional amendment as an isolated executive initiative. Since the 2024 general elections, which were marred by allegations of rigging, the relationship between the executive and judiciary has soured. Experts believe that recent Supreme Court rulings—favourable to former Prime Minister Imran Khan’s political party in opposition—galvanised the ruling coalition to pursue this amendment to rein in the Court and strengthen executive control over the Supreme Court. Further, the timing and rapid passage of the amendment also raise critical questions about the executive’s motives, and indicate a manifestly legal perversion.

Collectively, these actions scream of a compromised constitutional ethos in the country, an assault on the independence of the judiciary, and a blatant disregard for the separation of powers.

Introduced just one day before the retirement of then-Chief Justice of Pakistan Qazi Faez Isa, the amendment derailed the “seniority principle” that would have elevated Justice Mansoor Ali Shah to Chief Justice. Instead, within 24 hours, the parliament passed the amendment  with the requisite two-thirds majority (with some lawmakers alleging coercion), the newly constituted commission was convened and recommended Justice Yahya Afridi for the post, and the President appointed him as the Chief Justice, superseding the senior-most judge. Collectively, these actions scream of a compromised constitutional ethos in the country, an assault on the independence of the judiciary, and a blatant disregard for the separation of powers.

Legal Challenges to the Act

The corridors of the Court were abuzz with the proposed amendments, but the text was not provided to opposition leaders, the media, or lawyers. The text of the bill was not even known until a few minutes before it was tabled on the floor of the House and passed as the 26th Constitutional Amendment Act. Nevertheless, there was widespread speculation about what was being planned, prompting petitions challenging the constitutional validity of the proposed amendment. The Sindh High Court dismissed one petition, stating that it would not intervene pre-emptively, and another petition filed in the Supreme Court of Pakistan was withdrawn. Following the amendment’s passage, however, a series of challenges have commenced. The Sindh High Court has issued notices to the Attorney General of Pakistan, the Sindh Advocate General, and other respondents in petitions contesting the amendment’s validity, while a challenge has also been filed in the Supreme Court by the Lahore High Court Bar. While the challenges are pending, the judiciary’s response to this alleged subversion and attack on its independence remains to be seen.

Concluding Remarks

The political order of Pakistan has been in turmoil, and this constitutional chaos could potentially change the trajectory of the country. Nevertheless, even amidst the most turbulent periods, the Supreme Court in Pakistan has attempted to maintain a level of independence and transparency, striving to insulate itself from undue executive and legislative influence. The current situation poses a formidable test for the judiciary’s resilience, with far-reaching implications for constitutional order and stable democracy in Pakistan.

Ms. Neha Tripathi is currently working as an Assistant Professor of Law at Mahindra University. Her areas of interest include Comparative Constitutional Law, South Asian Constitutionalism, Constitutional Interpretation, Judicial Processes and Administrative Law.

Mr. Anubhav Kumar is an Advocate in the Supreme Court of India. With a robust portfolio of experience, he has been a part of several landmark constitutional cases. His areas of interest include Comparative Constitutional Law, Judicial Processes, and the study of Constitution-Making Processes.

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Suggested citation: Neha Tripathi and Mr. Anubhav Kumar, ‘The Story of the 26th Amendment: Executive Interference and the Judiciary’s Struggle for Independence in Pakistan', ConstitutionNet, International IDEA, 29 December 2024, https://constitutionnet.org/news/voices/story-26th-amendment-judiciarys-struggle-independence-pakistan

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