Introduction:

The 26th Constitutional Amendment, passed in October 2023, introduced sweeping judicial reforms to change the balance of power between the judiciary and the parliament in Pakistan. The amendments cover aspects such as judicial appointments, limits on judicial powers, and the structure of constitutional courts.

Historical Context:

* Need for Reform:

1. Calls for judicial reforms had been growing due to perceived judicial over reach and concerns over the balance of power between the judiciary and other branches of government.
2. The government argued that reforms were necessary to enhance parliamentary oversight and ensure democratic accountability.

* Judicial Overreach:

Criticism of the judiciary's use of Suo moto powers and its influence in key political matters triggered debates on how to limit these powers

Changes to Judicial Appointments

* Parliamentary Role in Appointments:

1. A special parliamentary committee now plays a role in the appointment of the Chief Justice of Pakistan (CJP), selecting from the three most senior judges.
2. This marks a departure from the previous system, where the senior-most judge automatically assumed the position of CJP.

* Chief Justice Term Limit:

The CJP's term is now limited to three years, with a mandatory retirement age of 65 years.

* Federal Constitutional Court (FCC):

The amendment establishes the FCC as the highest authority for handling constitutional cases, reducing the Supreme Court's power over constitutional interpretation.

Suo Motu Powers: Restrictions and Reforms

* Limiting Suo Motu Authority:

1. The Supreme Court's ability to take Suo moto notice has been curtailed.
2. A three-judge committee within the Supreme Court will decide whether or not to exercise these powers.

* Impact of Suo Motu Restrictions:

Previously, the Supreme Court could take up matters of public importance independently. Now, this will be subject to internal deliberation, potentially reducing judicial intervention in matters of public interest

Establishment of Constitutional Benches

* Creation of Specialized Benches:

1. Constitutional benches will now exclusively handle constitutional matters, separating them from other judicial functions.
2. Equal representation of judges from all provinces is required, ensuring a more inclusive and balanced judiciary.

* Role of the Judicial Commission:

The Judicial Commission will oversee the formation and regulation of these benches, determining the number of judges and duration of service on these specialized courts

High Court Case Transfers

* Supreme Court Oversight of High Courts:

1. The amendment empowers the Supreme Court to transfer cases from one high court to another if it feels justice is not being served.
2. This change adds an additional layer of oversight within the judiciary.

Election Commission and Continuity

* Election Commission Continuity Clause:

The amendment ensures that members of the Election Commission remain in office until their successors are appointed. This clause is designed to avoid disruptions during electoral transitions.

Controversies and Criticisms

Concerns over Judicial Independence

* Politicization of Judicial Appointments:

1. Critics argue that the involvement of parliament in the selection of the CJP could lead to political influence in judicial appointments.
2. Legal experts, including those from the International Commission of Jurists (ICJ),have expressed concerns about how these changes could compromise the independence of the judiciary.

Constitutionality of the Amendment

* Challenge to Judicial Power:

1. Some legal scholars believe the amendment could face constitutional challenges, especially given that it limits the scope of judicial review.
2. Previous Supreme Court rulings have affirmed that constitutional amendments can be struck down if they violate the "basic structure" of the Constitution, such as judicial independence Political Dimensions and Justifications Strengthening Parliamentary Sovereignty.

* Parliament's Role in Judicial Appointments:

The government defends the amendment as a means of strengthening parliamentary sovereignty and ensuring that elected representatives have a say in key judicial matters.

* Enhancing Judicial Accountability:

Proponents argue that the reforms make the judiciary more accountable by ensuring that no single branch of government can dominate.

Implications for Pakistan's Legal Framework 

Impact on Judicial-Executive Relations 

* Redefining the Balance of Power:

The amendment significantly alters the balance of power between the judiciary and the executive, increasing parliamentary control over judicial appointments and processes.

* Reduction of Judicial Autonomy:

By limiting Suo moto powers and involving parliament in key judicial decisions, the judiciary's autonomy in matters of public interest is diminished.

Provincial Representation

* Inclusive Judiciary:

The mandatory equal representation of judges from all provinces in constitutional benches aims to promote provincial harmony and ensure that the judiciary reflects the country's federal structure 

Challenges Moving Forward

* Legal and Political Resistance:

1. The 26th Amendment could face legal challenges on constitutional grounds, particularly from those who argue that it undermines the judiciary's independence.
2. Politically, the reforms have divided opinion, with some seeing them as necessary to restore parliamentary oversight, while others view them as a potential threat to democratic checks and balances

* Conclusion :

The 26th Constitutional Amendment of Pakistan represents a major turning point in the country's governance, reshaping the relationship between the judiciary and the executive. While the government has presented it as a necessary reform to restore parliamentary oversight, its potential to undermine judicial independence has sparked widespread concern.

CONSTITUTIONAL AMENDMENTS OF PAKISTAN SINCE 1973  click here

ELECTORAL REFORMS IN PAKISTAN  click here