Pakistan Approves Controversial 26th Constitutional Amendment

October 21, 2024

On October 21, 2024, Pakistan’s federal cabinet approved the draft of the 26th Constitutional Amendment. This decision followed multiple delays due to political disputes. The amendment aims to reform the judicial system and alter the balance of power between the political executive and the judiciary. The approval sets the stage for discussions and voting in the Senate and National Assembly.

The Proposed Package

The 26th Amendment is part of a broader ‘Constitutional Package’ introduced by the Pakistan Peoples Party (PPP)-led coalition government. It seeks to enhance the government’s influence over judicial appointments. Key proposals include:

Curbing Suo Motu Powers: The amendment aims to limit the Supreme Court’s ability to take suo motu actions, which are cases that the court takes on its initiative.

Chief Justice Appointment: The Chief Justice of Pakistan (CJP) will be appointed by a parliamentary committee from the three senior judges, rather than automatically by seniority.

Fixed Term for CJP: The CJP’s term will be set at three years, with retirement occurring after this period, regardless of age.

Judicial Appointment Process

The proposed amendments change how judges are appointed:

Parliamentary Panel: A special parliamentary committee will nominate the CJP. This panel will consist of 12 members, with representation from both the National Assembly and Senate.

Criteria for Judges: The commission responsible for appointing judges will include members with at least 15 years of experience as senior lawyers.

Performance Reviews: Annual evaluations of high court judges will be conducted, with the possibility of referral to the Supreme Judicial Council for underperformers.

Changes to Judicial Powers

Significant changes to judicial powers are included in the amendment:

Reduced Suo Motu Jurisdiction: The Supreme Court’s suo motu jurisdiction will be restricted to specific applications.

Constitutional Benches: The Judicial Commission of Pakistan will establish constitutional benches to handle specific jurisdictional matters.

Political Opposition and Challenges

The amendment faces strong political opposition. It requires a two-thirds majority in both houses of parliament to become law. The current government lacks the necessary votes, holding only 213 seats in the National Assembly and 52 in the Senate. The government has sought support from the Jamiat Ulema-e-Islam-Fazl (JUI-F), which has been hesitant to back the bill without full disclosure of its contents.

Importance of Parliamentary Numbers

A two-thirds majority is crucial for passing constitutional amendments. The government needs at least 224 votes in the National Assembly and 64 in the Senate. The PPP-led coalition is working to secure additional support, particularly from JUI-F, which holds key seats.

Concerns Over Judicial Independence

Analysts view the proposed amendments as an attempt to undermine judicial independence. Critics argue that increasing executive control over judicial appointments threatens the separation of powers. Legal challenges have emerged, with petitions claiming the amendments are unconstitutional. Protests by lawyers in Balochistan highlight widespread discontent regarding the proposed changes.

Following the cabinet’s approval, the Senate and National Assembly will discuss and vote on the amendments. The outcome will depend on the ability of the government to secure the required majority and navigate the complex political landscape.

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