When most of the country was asleep, the 26th Constitutional Amendment was validated by the House just before it landed in the Presidency, where President Asif Ali Zardari enacted it into a law that would now define how Pakistan’s top judges are selected and how the judiciary functions.
The bill managed to sail through both houses of Parliament – the Senate and then the National Assembly – with a two-thirds majority amid political tensions surrounding it.
Origins, support and opposition
The bill was introduced by Law Minister Azam Nazeer Tarar, and had to go through extensive deliberation in both houses of Parliament. It initially consisted of 22 clauses, but the Senate introduced five additional recommendations before finally putting it for a vote. Sixty-five members voted in its favor, just one more than the required two-thirds majority.
Members of the ruling coalition threw their weight behind the bill, with the Jamiat Ulema-e-Islam-Fazl (JUI-F) giving it an extra but much-needed push. A few members of other parties, like the Balochistan National Party-Mengal (BNP-M), defied party lines to back the bill.
The bill was then forwarded to the Lower House (National Assembly) for its nod, where it was passed with 225 votes, again just one more than the required 224 needed for a two-thirds majority.
Some lawmakers defied party lines to back the bill
Notably, a dozen PTI lawmakers and members of the Sunni-Ittehad Council (SIC) opposed the bill and walked out of the House in protest without taking part in the voting process. However, the ruling coalition managed to bag the support of smaller parties and ‘independent’ lawmakers.
What has changed? A lot!
The 26th Constitutional Amendment has introduced several changes, most of which affect the judiciary and its working. The law had trimmed the Supreme Court’s suo motu powers, which for a long time had previously been considered “unbridled” by some in the power corridors. These powers allowed the court to initiate cases on its own, especially on matters of public importance, without the need of any petition. Thanks to the latest amendment, the court will no longer be able to act as an independent check on the executive branch.
Another important change that the new law brings is in the tenure of the chief justice of Pakistan (CJP), which has now been capped at three years. This will not only limit the top judge’s influence but also ensure more frequent rotation of the post.
The prime minister’s role in judicial appointments is perhaps the most controversial aspect of this new law, as the premier will now select the chief justice of Pakistan from among the three senior most judges of the apex court. Although the selection will be based on recommendations from a special parliamentary committee, the executive branch now has significant sway in choosing the head of the judiciary. This particular provision has raised serious concerns about the separation of powers, and experts believe it could lead to confrontations not just between the judiciary and the executive but also among various political forces.
Fears and betrayals
Furthermore, all these changes have sparked debate about whether they will strengthen democracy or undermine judicial independence. The opposition, especially the Pakistan Tehreek-e-Insaf (PTI), has already labeled this amendment as a power grab by the government and a way to weaken the courts.
Given that the judiciary has often acted as a counterbalance to executive overreach in Pakistan, the opposition party fears that the government is consolidating power by diminishing the autonomy of the judiciary. It took a firm stand against the amendment, and even went on to organize protests against its own members who voted in favor of the legislation in the Upper House (Senate). In a social media post, the PTI called them “conscience-sellers” who had ‘betrayed’ the public mandate. It said the “turncoat” members had sold out the very system they had promised to reform.
What lies ahead?
The ruling coalition has hailed the passage of the 26th Constitutional Amendment as a victory for democracy. Addressing lawmakers in the Lower House after the voting process, Prime Minister Shehbaz Sharif said the milestone was not just a legal change, but a testament to national unity.
Later, in a statement issued by the state-run news wire, the Associated Press of Pakistan, Information Minister Attaullah Tarar also celebrated the moment as a “significant milestone” in Pakistan’s history. The amendment would bring stability to the constitutional and legal framework of the country, he said, adding that it would enhance the efficiency of the judicial system, improve transparency in judicial appointments, and ensure that the parliament remains the supreme institution of governance.
However, critics believe these changes will grind down the judiciary’s independence, as “unbridled” powers that some political parties once feared will now be in the hands of the executive. Political interference in the judiciary cannot be ruled out in such a scenario. It is yet to be seen whether this amendment, touted as a victory for democracy, will ultimately strengthen or weaken the institutions that are meant to check government power.