After months of political drama, accompanied by much wheeling and dealing, the 26th amendment act has received the official seal of the President. The Pakistan constitution 1973 is now amended. All political forces in the Parliament of Pakistan have supported this new amendment – especially the two major political parties that are the PML-N and the PPP were in the vanguard with Bilawal Bhutto Zardari and Maulana Fazal-ur-Rahman playing the leading role. The only voice of dissent was that of the PTI: after reaching a consensus with the JUI-F they then decided to abstain from voting when the resolution received over two third votes in favour.
This amendment to the constitution has finally satisfied the long frustrations and complaints of the two major parties, the PML-N and the PPP, who claim to have been the victims of the judiciary. So it now appears that the parliament has finally asserted its supremacy and clipped the wings of the judiciary and put a stop to any judicial over reach in future. This amendment also redefines the balance of power between the three branches of the country that is the executive, the legislature and the judiciary.
Both the PML-N and the PPP have a long list of grievances against the judiciary. The PPP had its elected Prime Minister hanged under the sentence given by the judiciary – and 40 years later, the same judiciary agreed that it was not a fair trial. Later on, two elected Prime Ministers of the PPP were sent packing by the Supreme Court, and the PML-N suffered the sacking of Nawaz Sharif under dubious circumstances. So the desire of both these parties to rein in the judiciary has some merit. In any democratic society, Parliament is supreme and is representative of the people who elect its members. The majority party in Parliament forms the government and is responsible for executing the mandate given to them by their supporters. Amendment to the constitution becomes mandatory if judicial interference prevents the ruling party from performing their duties to the satisfaction of their voters. Only time will tell if the 26th amendment is able to address the concerns it is supposed to or it will give rise to more abuse of powers.
While the amendment has been welcomed by many in Pakistan and abroad, it has at the same time received some scathing criticism from legal and constitutional experts
The most important feature of the amendment was the demand of the PML-N and the PPP to establish a constitutional court, but this was sidelined when the JUI-F and the PPP agreed on their draft for the formation of a constitution bench in the Supreme Court. Even the PTI was on board when this change was agreed upon. This bench will hear cases involving challenges to executive and legislative actions, as well as matters of public importance concerning the enforcement of fundamental rights. The Judicial Commission of Pakistan (JCP) is entrusted with selecting the members of this bench from among the judges of the Supreme Court. Consequently, the rulings and judgments of this bench may significantly impact governance and legislative activities. A parliamentary committee of 12 members will now be formed to select the Chief Justice from among the three senior most judges of the Supreme Court. Members of the committee will be nominated by the political parties based on the strength of the party in Parliament. This method has now given a lot of influence to the ruling party or coalition regarding the appointment of the Chief Justice of Pakistan.
The 26th constitutional amendment has made historical and major changes to the structure of the superior judiciary. In fact, it is for the first time that such sweeping changes have been made in our judicial history. These changes were described as being necessary to curb judicial activism as seen in the time of Iftikhar Chaudhry and Saqib Nisar and to remove the fears of political parties regarding judicial interference. As such, these changes have the potential to introduce new methods of manipulation of the judiciary and government controls of the superior judges.
The success of these reforms will depend on whether they are applied in the spirit of strengthening governance or whether they are exploited to undermine judicial independence. While the amendment has been welcomed by many in Pakistan and abroad, it has at the same time received some scathing criticism from legal and constitutional experts. United Nations Human Rights chief Volker Turk has expressed concern that the recently passed 26th Constitutional Amendment would "seriously undermine" judicial independence. A day earlier, the Human Rights Commission of Pakistan (HRCP) voiced strong reservations about the 26th Constitutional Amendment, expressing concerns that key aspects of the law could undermine judicial independence. The HRCP feared that the amendments could allow for excessive political control over the judiciary, threatening its independence. The International Commission of Jurists (ICJ) strongly criticised the passage of the 26th Constitutional Amendment, labelling it a "blow to judicial independence." The Commission stated that the amendment represented "a blow to judicial independence, the rule of law, and human rights protection."
It was gratifying to see the young chairman of the PPP Bilawal Bhutto Zardari in the vanguard of the movement for the 26th amendment. Bilawal has aged and matured in spite of his young age and he did full justice to his role while defending the constitution hand crafted by his illustrious grandfather. It is no secret that judicial activism has encroached upon the powers of the parliament and the executive thus disturbing the balance and distorting the system of checks and balances between state institutions.
Judicial activism and interference has also been responsible for destabilising elected government. Yet it will remain an irony of history that all such moves were supported by the security agencies and the opposition parties – and now the very same powers are the movers behind the 26th amendment!