Mudassir Rizwan

After months filled with political debates and discussions, the Constitution (Twenty-Sixth Amendment) Act 2024 has officially become law after receiving approval from the president. This amendment changes how power is shared among the three main parts of the government in Pakistan: the executive branch (the government), the legislative branch (parliament), and the judiciary (the courts). It aims to fix the long-standing issues both major political parties, the Pakistan Peoples Party (PPP) and the Pakistan Muslim League-Nawaz (PML-N), have had with judicial overreach.

Both the PPP and PML-N have faced challenges from the judiciary. The Supreme Court of Pakistan removed two prime ministers from the PPP and one from the PML-N. Because of these incidents, there is a valid reason for wanting to adjust the balance of power in the country.

In an ideal world, parliament should reflect what the people want. The government, formed by the majority party or coalition in parliament, is responsible for fulfilling the promises made to its voters. If political leaders believe that the judiciary is interfering with their ability to meet voters’ needs, revising the constitution can be one way to address the issue.

However, there are valid concerns about whether the 26th Amendment will adequately address the worries without leading to potential abuse of power. This caution is necessary to ensure the amendment’s implementation does not veer into misuse.

A key change introduced by this amendment is the creation of a Constitutional Bench within the Supreme Court. This special group will handle cases that challenge decisions made by the government and parliament, as well as issues that significantly concern the public and the enforcement of fundamental rights.

Choosing the members of this Constitutional Bench falls to the Judicial Commission of Pakistan (JCP), which will select judges from the Supreme Court for this purpose. The decisions made by this bench will have important implications for how the government operates and how laws are enacted.

The structure of the JCP is also noteworthy. The commission will now consist of five senior judges, five government representatives, two from the opposition, and one member from the Pakistan Bar Council. While this setup might not give full control to the ruling parties right away, a deeper look reveals some potential problems. For instance, the amendment has changed how the chief justice of Pakistan will be appointed.

Now, the chief justice will be chosen from the three most senior judges by a parliamentary committee. This committee will include political party members selected based on their strength in parliament. This change may give the ruling parties a significant degree of influence over who becomes the chief justice, a situation that should raise concerns about political influence in the judiciary.

This raises significant concerns about potential conflicts of interest, especially since the top three judges are also part of the JCP. This situation might lead to judges feeling pressured to favor the ruling parties if they believe this could help them become the next chief justice, thereby providing the government an indirect advantage in decision-making.

It’s also important to consider that the Pakistan Bar Council has a say in the JCP. This means that political parties might try to influence elections within the bar council to secure this voting power. Even before this amendment, there were worries about how often bar associations are controlled politically, with many arguing that elected members are often hesitant to regulate their peers. Adding political motivations into the mix could worsen these existing issues and harm the quality of legal regulation even further.

In addition to affecting the JCP and the Constitutional Bench, the amendment introduces a system to evaluate the performance of high court judges every year. This evaluation aims to tackle concerns that some judges might not perform well after their confirmation. If the JCP finds a judge underperforming, the judge will be given time to show improvement. However, if they still do not meet standards, their case can be referred to the Supreme Judicial Council for possible removal.

While this evaluation system could help improve how the judiciary works, there are also risks. A judge who wishes to remain independent could face undue pressure to align with the government, thus threatening their role in checking government overreach. Considering the judiciary’s critical role in protecting citizens’ rights from the government, having such a tool could be a serious threat to judicial independence.

Moreover, the amendment does not clarify the terms or grounds for removing judges from the Constitutional Bench. The JCP can remove judges without a set term or clear rules about how these decisions should be made. Although the JCP could create its own regulations to protect judges from being dismissed without just cause, the amendment itself does not provide these necessary safeguards.

Overall, the 26th Constitutional Amendment introduces significant modifications to Pakistan’s judicial system, but it will take time to understand the full consequences. While these changes are presented as responses to political parties’ grievances about judicial meddling, they may also lead to new risks of control over the judiciary.

The effectiveness of these reforms ultimately hinges on whether they are implemented with the intent to strengthen governance or whether they are misused to undermine the independence of the judiciary.

In the end, there is hope that this shift in power will benefit the broader interests of Pakistan and fortify its democratic practices.