In a striking move that could reshape Pakistan's political landscape, the ruling coalition, comprising dynastic parties, has succeeded in passing a constitutional amendment, signed into law by the President, to centralise judicial power within the executive. This move has not only caused dismay amongst the country's Bar Councils but has also raised alarm bells internationally. The Secretary General of the International Court of Justice swiftly labelled the development a threat to judicial independence, warning that it violates both Pakistan's Constitution and international law.
The motivation behind this centralisation of power is rooted in the ruling coalition's fear of an independent judiciary that might challenge their authority. Senior puisne judge of the top court, Justice Mansoor Ali Shah, has loomed large in their calculations. A vocal defender of democratic values and a judge who has already delivered rulings against the government, his impending elevation to the post of chief justice posed a serious threat to their plans.
Justice Shah's recent decision to recognise the Pakistan Tehreek-e-Insaf (PTI) as a parliamentary party after its independent candidates secured a majority in the February 2024 general elections was seen as a direct challenge to the ruling establishment. The fear that PTI might regain its strength and claim reserved seats, which the government hoped to distribute among its own ranks, was too much for the ruling coalition to stomach.
The 26th Constitutional Amendment reshapes how the Chief Justice of Pakistan is selected, shifting the power away from seniority and into the hands of a 12-member parliamentary committee. This committee, which includes political figures, now holds the authority to pick the top judge, subject to a two-thirds majority vote. Once selected, the name is passed on to the Prime Minister, who sends it to the President for final approval.
This move clearly places judicial appointments directly under the control of the executive. The newly established Judicial Commission, which oversees the appointment of Supreme Court judges, is now stacked with political appointees, including the Federal Law Minister, the Attorney General, and several members of Parliament. This structure effectively neutralises the judiciary's independence, placing it under the same forces it was meant to keep in check.
Perhaps the most concerning aspect of this amendment is that it prevents any court or authority from questioning the prime minister or federal cabinet's decisions. In this way, executive actions, no matter how controversial, are now immune to judicial review. The courts, once a critical counterbalance to executive power, are now left sidelined and stripped of their ability to hold the government accountable.
By placing judicial power under the control of the executive, the ruling coalition has fundamentally weakened the separation of powers
But why did the dynastic parties feel the need to push through such a sweeping amendment? The answer lies in their growing anxiety over losing control. Justice Shah's rulings, particularly on PTI's status, represented a significant threat to their dominance. The possibility of PTI regaining its political footing, with judicial support, was a nightmare scenario for the ruling coalition. They saw this as a last-ditch effort to protect their grip on power.
Despite facing vocal opposition from PTI leaders like Omar Ayub Khan and Barrister Gohar Ali Khan, who argued that the amendments undermined the core principles of democracy, the ruling coalition managed to secure the necessary two-thirds majority in both the Senate and the National Assembly. The government's narrow victory came amid allegations of coercion, with PTI claiming that several of its lawmakers were "abducted" to ensure the bill's passage. Nevertheless, the coalition pressed ahead, and the law was enacted.
Bilawal Bhutto-Zardari, who played a central role in building support for the amendment, publicly thanked coalition partners like the Pakistan Muslim League-Nawaz (PML-N) and Muttahida Qaumi Movement-Pakistan (MQM-P), Awami National Party (NAP) and Balochistan Awami Party (BAP) and portraying the amendment as a necessary reform. But behind the scenes, it was clear that the real goal was not reforming the judiciary for the sake of governance—it was about consolidating power and neutralising potential threats from within the judiciary.
What does this mean for Pakistan's democracy? The consequences are alarming. By placing judicial power under the control of the executive, the ruling coalition has fundamentally weakened the separation of powers. The judiciary, once a guardian of the people's rights and a check on government overreach, has been rendered powerless. This erosion of judicial independence could destabilise Pakistan's democratic institutions, allowing the executive to operate unchecked.
In a heartfelt statement, ICJ Secretary General Santiago Canton expressed deep concern about Pakistan's 26th Constitutional Amendment, calling it a serious threat to judicial independence, the rule of law, and human rights protection. He cautioned that the reforms introduce an alarming level of political influence over judicial appointments, undermining the judiciary's ability to serve as a check on government excesses. Canton condemned the rapid and secretive way the amendment was passed, emphasising that it disregarded fundamental democratic principles. He noted that the changes to the Judicial Commission of Pakistan (JCP) would diminish the role of judicial members, raising fears of tailored judicial benches that could compromise impartiality, particularly in politically sensitive cases.
The new constitutional changes may offer short-term stability for the ruling coalition, but they do so at the cost of public trust in the rule of law. With the courts now under executive influence, citizens may begin to question whether their rights can truly be protected. While the dynastic elites may celebrate their political victory today, they do so at the risk of further eroding the democratic foundations of the country. The true cost of this move may not be felt immediately, but in the long run, it threatens to weaken the rule of law and undermine the very fabric of Pakistan's democratic society.