Supreme Court’s Legitimacy Under Scrutiny: The Crisis of the 26th Amendment and Judicial Independence

Article 8 of the constitution of the Pakistan is the heart of the constitution being the supreme guarantee for the fundamental rights.

Naveed Hussain

The legitimacy of Pakistan’s Supreme Court is increasingly coming into question, as growing concerns about the impact of the 26th Amendment have triggered a wave of criticism from within the legal community. This crisis of legitimacy is not just a matter of political debate but touches upon the fundamental independence of the judiciary itself. Despite a rising call for the full court to hear challenges to the 26th Amendment, the appeal for a comprehensive review has largely been ignored. This situation has created a mounting sense of frustration and apprehension, especially as the amendment’s implementation begins to interfere with the court’s ability to function independently.

There is a prevailing belief among critics that the judiciary is being unduly influenced by the other branches of government. The growing perception is that judicial appointments to senior positions are increasingly based on political favoritism or quid pro quo arrangements, where individuals are selected not for their legal merit but for the services they can offer in return. While these claims should be taken with caution and require concrete evidence to be fully substantiated, the fact remains that the judiciary, as an institution, has shown very little effort to genuinely address these concerns or to ensure transparency in its operations.

One of the latest developments that has brought these issues to the forefront is the statement from Justice Mohsin Akhtar Kayani, one of the senior-most judges of the Islamabad High Court (IHC). Justice Kayani voiced his support for those calling for a full court to hear the ongoing challenges to the 26th Amendment, stressing that the amendment may have been introduced as a reaction to a letter allegedly written by six justices of the IHC. This letter purportedly detailed concerns about significant interference in the judicial process, and Justice Kayani’s remarks underscored the non-political nature of the criticism, framing it instead as an issue of judicial integrity and independence. The fact that a senior judge within the judicial system is openly supporting such calls adds weight to the argument that the amendment’s implications must be carefully examined by the highest court.

On the same day, a decision from the constitutional bench of the Supreme Court further highlighted the unrest within the judiciary. The constitutional bench overruled a ruling from a regular bench regarding the administrative jurisdiction of committees that oversee case assignments. The judgment prompted one of the judges from the constitutional bench to recuse themselves, leaving behind a note that the court should “preserve and safeguard the sanctity of judicial orders.” This rare and public act of dissent within the judiciary speaks volumes about the deep divisions and dissatisfaction with the handling of the 26th Amendment.

The ongoing challenges posed by the amendment are far from trivial. The legal community has made a compelling case that the matter should be decided by the full court to ensure a thorough and impartial review. It is a basic principle of judicial fairness that no bench, no matter how senior its members, should be seen as superior to others in terms of their legal acumen simply because they were assigned to a particular case. The legitimacy of the decision-making process must be beyond reproach. There is no reason why only a subset of justices should be tasked with deciding such an important and contentious issue, while others are excluded from the process. The importance of a full and collective judicial review cannot be overstated.

Moreover, historical precedents from Pakistan’s judicial history support the call for a full court hearing in such cases. There have been numerous occasions when constitutional amendments were challenged before a full bench of the Supreme Court, and these cases were addressed by all available justices. This practice ensures that constitutional matters of great importance are reviewed from multiple perspectives, and it upholds the integrity of the legal process. The refusal to adopt this approach in the case of the 26th Amendment undermines the principle of fairness and invites further criticism about the court’s willingness to address contentious issues transparently.

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The 26th Amendment, with its far-reaching implications, has created a significant rift within the judiciary itself. What began as a seemingly straightforward change to the law has spiraled into a complex and controversial issue that raises serious questions about the independence of the judiciary and the extent to which it is being influenced by external forces. Whether or not this perception is accurate, it is undeniable that the controversy surrounding the amendment has eroded public trust in the judiciary’s ability to function impartially.

In this context, the importance of transparency and accountability within the judicial system cannot be stressed enough. The public and the legal community at large have a right to expect that the highest court in the land will not only act impartially but will also be seen to be acting impartially. The failure to address the concerns surrounding the 26th Amendment through a full court hearing risks deepening the crisis of legitimacy. It may also fuel the perception that the court is reluctant to engage in an open and honest evaluation of its actions, thereby further damaging its credibility.

The current situation is an opportunity for the Supreme Court to restore public faith in its ability to act as an independent and impartial arbiter of constitutional matters. The judiciary must take proactive steps to address the growing concerns about political interference and the erosion of its autonomy. By agreeing to hear the challenges to the 26th Amendment in a full court, the court would demonstrate its commitment to upholding the rule of law and ensuring that all constitutional issues are resolved with the utmost fairness and integrity.

In conclusion, the growing sense of disillusionment within the legal community and the wider public cannot be ignored. The ongoing crisis surrounding the 26th Amendment presents an urgent opportunity for the judiciary to show leadership, transparency, and fairness. By adopting a more inclusive approach to hearing such significant cases, the Supreme Court can begin to repair its damaged legitimacy and reaffirm its role as an independent and impartial institution at the heart of Pakistan’s constitutional framework. Failure to do so risks further undermining public trust and perpetuating the notion that the judiciary is not acting in the best interests of the nation.

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