Redefining Justice: The Impact Of Pakistan’s 26th Constitutional Amendment – OpEd
Pakistan's recently passed 26th Constitutional Amendment, also known as the "Constitutional Package," represents one of the most comprehensive reforms in the country's judicial history. This set of amendments aims to address transparency, accountability, and the balance of power within the judiciary.
By curtailing certain judicial powers and involving Parliament in judicial appointments, this amendment package seeks to enhance democratic oversight and address longstanding criticisms about judicial overreach. However, the amendment has also sparked debate, as it introduces significant shifts in judicial functioning, particularly with regard to the Supreme Court’s suo motu powers and the appointment of the Chief Justice of Pakistan (CJP).
One of the amendment's most impactful provisions is the restructuring of the Chief Justice's appointment process. Previously, the most senior judge of the Supreme Court automatically succeeded as CJP, an arrangement designed to ensure neutrality and clear succession. However, the 26th Amendment introduces a new approach: a Special Parliamentary Committee will now recommend the CJP from among the top three senior judges, allowing Parliament to influence this critical role. The committee, composed of eight National Assembly members and four Senate members, is structured to reflect the proportional representation of parliamentary parties, giving the selection process a more democratic veneer.
Supporters of this change argue that it ensures the appointment of a leader who is not chosen solely based on seniority but also possesses experience and qualifications that align with the judiciary's current needs. This provision echoes a broader trend seen in other countries where judicial leadership appointments consider qualities beyond tenure. However, critics warn that this change could open the door to political influence over the judiciary’s highest office, potentially undermining its independence.
Another pivotal change under the amendment is the Supreme Court’s restricted use of suo motu powers. Previously, the apex court could initiate cases of public interest independently, a power that has been instrumental in addressing pressing issues without the need for formal applications. Under the new law, however, the Supreme Court may only exercise jurisdiction based on specific applications filed before it. This restriction is significant, as it limits the judiciary's ability to address urgent social issues spontaneously. Proponents of this measure argue that it prevents judicial overreach and respects the separation of powers by ensuring that courts do not unilaterally interfere with legislative or executive functions. Critics, however, worry that this change could hinder the court’s ability to address issues that may not be championed by the other branches of government.
The amendment also introduces a term limit for the Chief Justice of Pakistan, setting it at three years or until the judge reaches the age of 65, whichever is sooner. This term cap is intended to ensure that the judiciary’s leadership remains dynamic, with frequent changes allowing for fresh perspectives. However, this raises questions about continuity, as the CJP may no longer serve long enough to see through extensive reforms.
Furthermore, the 26th Amendment establishes constitutional benches within the Supreme Court, creating a specialized structure that aims to handle constitutional and politically significant cases. By forming these benches, the amendment seeks to reduce the overall backlog of cases and ensure that cases affecting ordinary citizens are resolved more quickly. High-profile cases that could stall other judicial processes are now assigned to designated constitutional benches, allowing the regular judiciary to function more efficiently.
Another notable feature is the emphasis on judicial accountability. The amendment requires performance evaluations of high court judges, with unsatisfactory judges given a grace period to improve. If they fail to meet these standards, their cases can be referred to the Supreme Judicial Council, reinforcing accountability within the judiciary.
Alongside judicial reforms, the amendment enshrines environmental rights as a constitutional priority. With Article 9A, Pakistan has become one of the few countries to constitutionally guarantee its citizens the right to a clean and healthy environment. This development highlights the state’s commitment to addressing climate change and promoting sustainable development. Pakistan's vulnerability to climate change makes this clause particularly relevant, setting a precedent for judicial enforcement of environmental protection.
While supporters of the 26th Amendment view it as a positive step towards a more transparent and accountable judiciary, opponents remain concerned about executive overreach. The involvement of Parliament in judicial appointments raises questions about potential political interference, especially when it comes to selecting high-level judicial leaders. Balancing accountability with judicial independence will be key to the amendment's success.
In redefining the roles and functions within Pakistan's judiciary, the 26th Amendment reflects a changing landscape. Its emphasis on oversight, accountability, and environmental protection signals the government’s effort to create a more modern and responsive judiciary. However, navigating the fine line between reform and overreach will be crucial to achieving its intended goals.