A proposed constitutional amendment in Pakistan alters the appointment process of the Chief Justice, shifting power from the judiciary to a parliamentary committee. Strong opposition, particularly from the PTI party, criticizes this change as undermining judicial independence and potentially leading to government influence over judicial decisions. A commentary argues that this amendment prioritizes parliamentary supremacy, asserting the parliament’s authority over other institutions and advocating for greater public awareness regarding democratic principles. The author emphasizes the importance of parliamentary authority and condemns judicial overreach. The amendment is lauded by some as potentially improving efficiency and resolving longstanding cases.

26th Amendment FAQ

What is the main purpose of the 26th Amendment to the Constitution?

The 26th Amendment aims to reform the process of appointing the Chief Justice, shifting the basis from senatorship to merit. This is intended to enhance the independence and impartiality of the judiciary.

How will the Chief Justice be appointed under the 26th Amendment?

A 12-member parliamentary committee, with proportional representation from the National Assembly and the Senate, will recommend candidates to the Prime Minister. The committee must reach a two-third majority for a recommendation to be valid.

What changes are being made to the structure and powers of the judiciary?

Constitutional benches: These specialized benches will be established in the Supreme Court and High Court to handle constitutional matters.
Judicial Commission’s role: The Judicial Commission will be responsible for appointing judges to the Supreme Court and forming the constitutional benches.
Limited authority: The judiciary’s power to interpret constitutional matters will be limited to the appeals process, curbing judicial activism.

What are the key criticisms of the 26th Amendment?

The opposition party, PTI, criticizes the amendment as a move toward government control over the judiciary. They argue that:

Judges will be beholden to the government for their appointments, compromising judicial independence.
The limitations on judicial authority undermine the judiciary’s ability to act as a check on executive power.

Who is being praised for supporting the 26th Amendment?

The author praises several individuals and groups for their support of the amendment, including:

Bilawal Bhutto: For his leadership in advocating for the amendment.
Maulana Fazlur Rehman: For his political maneuvering and persuasion skills in building support.
Aimal Wali Khan: For his compelling speech in favor of the amendment.
Nawaz Sharif: For his eloquent articulation of the struggles faced by those advocating for democratic principles.

What is the significance of comparing Parliament to the “voice of God”?

The author emphasizes the supremacy of Parliament as the embodiment of the people’s will. By comparing Parliament to the “voice of God,” they stress the absolute authority of the elected representatives and argue that all other institutions, including the judiciary, should be subservient to it.

What is meant by the term “judicial dictatorship”?

The author uses this term to denounce what they perceive as an overreach of judicial power. They cite instances where the Supreme Court intervened in political matters, such as dismissing elected Prime Ministers, as examples of the judiciary exceeding its constitutional mandate.

What is the author’s proposed solution to prevent “judicial dictatorship”?

The author suggests renaming the “Supreme Court” to “Federal Court” to symbolize a shift in power dynamics. They also advocate for the separation of constitutional benches to streamline the judicial process and prevent undue delays in resolving public cases.

Pakistan’s 26th Amendment: A Deep Dive

Glossary of Key Terms

26th Amendment: A constitutional amendment in Pakistan aimed at reforming the judicial system, particularly the process of appointing the Chief Justice and the formation of constitutional benches.
Chief Justice: The highest-ranking judge in the Supreme Court of Pakistan.
Parliamentary Committee: A group of members from the National Assembly and the Senate, responsible for proposing recommendations related to the appointment of the Chief Justice.
National Assembly: The lower house of the Parliament of Pakistan.
Senate: The upper house of the Parliament of Pakistan.
Government Allies: Political parties that support the ruling party in the Parliament.
Opposition: Political parties that oppose the ruling party in the Parliament.
Two-Third Majority: A voting requirement where at least two-thirds of the members must vote in favor of a proposal for it to pass.
Supreme Court: The highest court in the judicial system of Pakistan.
High Court: A provincial level court in the judicial system of Pakistan.
Constitutional Benches: Specialized benches within the Supreme Court and High Courts responsible for hearing cases related to constitutional matters.
Judicial Commission: A body responsible for the appointment of judges to the higher judiciary in Pakistan.
Suo Moto: A Latin term meaning “on its own motion”, referring to the power of a court to initiate legal proceedings without a formal complaint.
PTI (Pakistan Tehreek-e-Insaf): A major political party in Pakistan, currently in opposition.
Judicial Activism: A judicial philosophy where judges are seen as taking a more active role in shaping public policy through their decisions.
Federal Court: A proposed name to replace “Supreme Court” in Pakistan, reflecting a desire for a less powerful judiciary.

Short Answer Questions

What is the main purpose of the 26th Amendment to the Constitution of Pakistan?
How is the appointment of the Chief Justice handled under the 26th Amendment? Explain the role of the parliamentary committee.
What are constitutional benches, and how are they formed under the new amendment?
How does the 26th Amendment affect the Supreme Court’s authority in interpreting constitutional matters?
Why is the PTI critical of the 26th Amendment? What are their main concerns?
According to the author, who are the true “heirs” of the country and the source of power?
What is the author’s view on the relationship between Parliament and the Judiciary?
What criticism does the author level against the Supreme Court’s past actions towards elected Prime Ministers?
Why does the author suggest changing the name “Supreme Court” to “Federal Court”?
What positive outcomes does the author hope to see as a result of the 26th Amendment?

Short Answer Key

The main purpose of the 26th Amendment is to reform the judicial system, particularly the process of appointing the Chief Justice and the formation of constitutional benches, aiming to limit judicial power.
The appointment of the Chief Justice is now based on merit, assessed by a 12-member parliamentary committee. This committee sends recommendations to the Prime Minister, requiring a two-thirds majority vote for approval.
Constitutional benches are specialized judicial panels within the Supreme Court and High Courts that handle constitutional matters. The Judicial Commission appoints judges to these benches, and the suo moto powers regarding these benches are shifted from the Chief Justice to the Commission.
The amendment limits the Supreme Court’s authority to interpret constitutional matters beyond the initial appeal level.
The PTI criticizes the 26th Amendment, arguing that it weakens the judiciary and allows the government undue influence over judicial appointments and decisions. They see it as a threat to judicial independence.
The author believes that the common people are the true “heirs” of the country and that their collective power, exercised through Parliament, is the legitimate source of authority.
The author believes that Parliament should be supreme, and all other institutions, including the judiciary, should be subordinate to it. They criticize any attempts to elevate the judiciary above the elected representatives of the people.
The author criticizes the Supreme Court for what they perceive as overreach and interference in the executive branch’s functioning, citing examples of past actions against elected Prime Ministers.
The author suggests changing the name “Supreme Court” to “Federal Court” to symbolize a reduction in the judiciary’s power and to emphasize its position as one institution among others, accountable to Parliament.
The author hopes the 26th Amendment will lead to faster processing of public cases, reduced judicial activism in political matters, and a greater respect for Parliament’s authority from the Chief Justice and the judiciary as a whole.

Essay Questions

Analyze the author’s perspective on the concept of “judicial activism.” What are the author’s main arguments against judicial activism, and how do these arguments relate to the 26th Amendment?
Discuss the potential implications of the 26th Amendment for the balance of power between the different branches of government in Pakistan.
Critically evaluate the author’s argument that the Parliament should be considered supreme over all other institutions in Pakistan. What are the strengths and weaknesses of this argument?
How does the author use historical examples to support their argument for the need to limit the power of the judiciary in Pakistan? Are these examples used effectively?
Compare and contrast the potential benefits and drawbacks of the 26th Amendment as outlined in the text. Consider the perspectives of different stakeholders, including the government, the opposition, and the judiciary.

Navigating Judicial Reform: A Deep Dive into Pakistan’s 26th Amendment

Source: Excerpts from “Pasted Text”

I. The Genesis of the 26th Amendment (Paragraph 1)

This section details the key provisions of the 26th Amendment, focusing on the establishment of a merit-based system for appointing the Chief Justice.
It outlines the composition and function of the 12-member parliamentary committee tasked with recommending candidates, emphasizing the requirement of a two-thirds majority.
Key elements like the Chief Justice’s term, the establishment of constitutional benches, and the role of the Judicial Commission are also highlighted.

II. A Critique of Judicial Overreach and the Erosion of Parliamentary Supremacy (Paragraphs 2-6)

This section critiques the judiciary’s perceived overstepping of its boundaries, particularly concerning constitutional matters.
The author argues for the supremacy of Parliament, drawing on the concept of popular sovereignty and framing the elected body as the true voice of the people.
Examples of alleged judicial activism, such as the dismissal of elected Prime Ministers, are cited to illustrate the perceived imbalance of power.

III. Advocating for a Balanced Judicial System (Paragraphs 7-8)

This section proposes solutions to address the perceived issues within the judicial system, advocating for a more balanced relationship between the judiciary and parliament.
The author suggests renaming the Supreme Court to the Federal Court and emphasizes the potential benefits of separating constitutional benches to expedite case resolution.
It also expresses hope for a future where the judiciary respects the authority of parliament, citing Justice Qazi Faiz Isa as a positive example.

IV. Recognizing Key Players in the Amendment’s Passage (Paragraph 9)

This section commends the efforts of individuals who played a crucial role in the passage of the 26th Amendment.
Bilawal Bhutto is praised for his leadership, particularly his efforts to foster unity and his adoption of a more mature political approach.
Maulana Fazlur Rehman is recognized for his political acumen and ability to bridge ideological divides, while Aimal Wali Khan and Nawaz Sharif are also acknowledged for their contributions.

V. A Poetic Reflection on Resilience and Political Struggle (Paragraph 10)

The final section concludes with a poignant verse, encapsulating the challenges and perseverance inherent in the political landscape.
The poem evokes themes of facing adversity, enduring hardships, and the unwavering determination to survive and fight for justice.

The 26th Amendment to the Constitution was recently approved. [1] This amendment changes how the Chief Justice is appointed. [1] A 12-member parliamentary committee with proportional representation from the National Assembly and the Senate will now recommend the Chief Justice to the Prime Minister. [1] **This committee must have a two-thirds majority for the recommendation, not a simple majority. [1] The Chief Justice will have a term of three years or until they reach the age of 65. [1] **The Judicial Commission will appoint constitutional benches and judges to the Supreme Court. [1] The judiciary will no longer be able to order or interpret any constitutional matter beyond the appeal. [1]

Some people view the amendment as a way to control the judiciary. [1] They argue that the government will now be able to make decisions about which judges are appointed and that the judiciary will be beholden to the government. [1] For example, Justice Mansoor of the Supreme Court believes this amendment will lead to questions about whether cases should be heard by a general bench or a constitutional bench. [1] Others view the amendment as necessary to prevent judicial dictatorship. [2] They argue that the judiciary has become too powerful and that it has overstepped its bounds. [2] One example given is the firing of a three-time elected prime minister for not taking a salary from his son and for not writing a letter against his party leader. [2] This was seen as 17 people dominating 25 crore national representatives. [2]

The amendment has caused strong reactions from different groups. [1] The opposition party, PTI, criticized the amendment and declared it a black day in the history of the judiciary. [1] They see this as a revision that weakens the judiciary. [1] Maulana Fazlur Rehman, on the other hand, said that “we have broken the teeth of the black cobra.” [1]

The 26th Amendment to the Constitution was recently approved. [1] This amendment changes how the Chief Justice is appointed. [1] Instead of being based on senatorship, the appointment will now be based on merit. [1]

Here are some key details of the amendment:

A 12-member parliamentary committee with proportional representation from the National Assembly and the Senate was created to recommend potential Chief Justices to the Prime Minister. [1]
This committee must send recommendations to the Prime Minister with a two-thirds majority, not a simple majority. [1]
The Chief Justice will have a three-year term or an age limit of 65 years. [1]
The Supreme Court and High Court will have constitutional benches. [1]
The Judicial Commission, not the Chief Justice, will appoint constitutional benches and judges in the Supreme Court. [1]
The judiciary will no longer be able to order or interpret any constitutional matter beyond the appeal. [1]

The amendment has sparked controversy. The opposition party, PTI, has strongly criticized it, calling it a “black day in the history of judiciary.” [1] They believe that judges will be beholden to the government for appointments, and that this amendment signifies the “funeral of Azad Judiciary.” [1]

The recent constitutional amendment discussed in the sources can be seen as an attempt at judicial reform. [1] It aims to address concerns about judicial activism and overreach by curtailing the judiciary’s power in several ways:

Limiting the judiciary’s authority on constitutional matters: The amendment states that the judiciary will no longer have the power to order or interpret any constitutional matter beyond the appeal level. [1] This aims to prevent the judiciary from making decisions that some perceive as encroaching on the legislature’s domain. [2]
Shifting power to appoint judges and form constitutional benches: The amendment transfers the authority to appoint judges to the Supreme Court and form constitutional benches from the Chief Justice to the Judicial Commission. [1] This could potentially reduce the Chief Justice’s influence and make the process more transparent and accountable. [1]
Changing the Chief Justice appointment process: The amendment changes the appointment of the Chief Justice from a seniority-based system to a merit-based one. [1] This aims to ensure that the most qualified individual is chosen for the position, rather than simply the most senior judge. [1]

These changes are intended to address concerns that the judiciary has become too powerful and is interfering in the political process. [2] The amendment’s supporters argue that it will restore balance between the different branches of government and strengthen democracy. [3, 4]

However, critics of the amendment, such as the PTI party, view it as an attack on judicial independence. [1] They argue that by limiting the judiciary’s power and giving the government more control over appointments, the amendment will make judges beholden to the government and undermine the rule of law. [1, 2]

The long-term impact of these reforms remains to be seen. It is possible that the changes will lead to a more efficient and accountable judiciary. However, there is also a risk that they could weaken the judiciary’s ability to act as a check on executive power and protect fundamental rights. [2]

The sources argue that parliamentary supremacy is a crucial aspect of democracy and that all other institutions, including the judiciary, should be subordinate to it. [1, 2] The author of the source material, referred to as “Author,” contends that the people are the true source of power, and their elected representatives in parliament embody this power. [1] Therefore, all other institutions, whether “dusty or black,” are essentially public servants who should operate under the authority of the elected parliament. [1]

Author emphasizes that comparing parliament to any other institution is a “great sin and disbelief.” [2] They argue that the parliament is the “spokesman of public aspirations,” the “mother of the constitution,” and the “trustee and protector of human greatness.” [2] Any challenge to its authority is seen as an affront to “humanity or human dignity,” tantamount to “denial of the constitution, democracy, and human dignity.” [2]

Author criticizes what they perceive as past judicial overreach, arguing that the judiciary has acted as a “monster” by repeatedly targeting elected prime ministers. [3, 4] They cite examples such as the dismissal of Prime Ministers Gillani and Nawaz Sharif, which they view as instances of “judicial dictatorship” and contempt for the will of the people. [4]

Author suggests that the recent constitutional amendment, which limits the judiciary’s power and alters the process for appointing judges, is a step towards curbing this perceived judicial overreach and restoring parliamentary supremacy. [5] They believe that parliament has the ultimate authority to define the powers of other institutions, even suggesting that the Supreme Court could be renamed the “Federal Court” to emphasize its subordinate position. [5]

The sources express hope that this shift in power will lead to a more balanced and democratic system where the will of the people, as expressed through their elected representatives, is paramount. [6]

The sources present a strong critique of judicial activism, portraying it as a threat to parliamentary supremacy and democratic principles. “Author ,” the author, argues that the judiciary, particularly the Supreme Court, has overstepped its bounds and engaged in actions that undermine the authority of the elected parliament.

Here are some key points about how the sources discuss judicial activism:

Seen as exceeding judicial authority: The sources condemn instances where the judiciary has interfered in matters that are perceived as falling under the purview of the legislature or the executive. They cite the dismissal of elected Prime Ministers Gillani and Nawaz Sharif as examples of judicial overreach, arguing that these actions amounted to a “judicial dictatorship.” [1, 2]
Described as biased against elected leaders: Author criticizes the judiciary for allegedly showing deference to military dictators while adopting a hostile stance towards democratically elected leaders. They accuse the judiciary of “prostrating” before military rulers while acting like “kings” in front of elected representatives. [2]
Blamed for prioritizing certain cases: The sources accuse judges of prioritizing “political and interest cases” to gain media attention, neglecting “thousands of public cases” that remain pending for years. This, according to the sources, represents a “blood of justice.” [3]
Framed as a threat to democracy: The sources view judicial activism as a challenge to the core principles of democracy, particularly the principle of parliamentary supremacy. They argue that the judiciary should be subordinate to the parliament, which represents the will of the people. [1, 2, 4, 5]

The sources suggest that the recent constitutional amendment, which limits the judiciary’s power and changes the process for appointing judges, is a necessary step to curb judicial activism and restore the balance of power between different branches of government. [2, 3, 6]

The sources highlight the concept of political power as emanating from the people and being channeled through their elected representatives in parliament. “Author ” argues that “our collective public power is the source of power,” and therefore, the right to rule belongs to those representatives chosen by the people and sent to parliament [1].

Here are some key points about political power as discussed in the sources:

Parliamentary Supremacy: The sources emphasize the idea of parliamentary supremacy, meaning that the elected parliament holds the highest authority in the political system. All other institutions, including the judiciary, are considered subordinate to parliament and should operate within the bounds set by it [1-4].
The People as the Source of Power: The sources stress that ultimate political power resides in the people. They elect their representatives to parliament, which acts as their voice and the embodiment of their collective will. This concept is central to democratic principles, where the government derives its legitimacy from the consent of the governed [1].
Concerns about Judicial Overreach: The sources express concern about instances where the judiciary has been perceived as overstepping its boundaries and encroaching on the political power of the parliament. They cite examples of judicial interventions in political matters, such as the dismissal of elected prime ministers, which are seen as undermining parliamentary supremacy and the will of the people [3, 4].
Constitutional Amendment as a Rebalancing Act: The recent constitutional amendment, which aims to limit judicial power and change the process of judicial appointments, is presented as a way to reassert parliamentary supremacy and address concerns about judicial activism. The sources suggest that this amendment is a step towards restoring the balance of power between different branches of government and ensuring that political power ultimately rests with the people’s elected representatives [4-6].

The sources advocate for a system where political power flows from the people to the parliament, which is seen as the rightful holder and executor of that power. They view any attempt to challenge or diminish parliamentary supremacy, particularly through judicial activism, as a threat to the democratic principles upon which the political system is founded.

By Amjad Izhar
Contact: amjad.izhar@gmail.com
https://amjadizhar.blog

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Category: 26th Amendment

Judicial Reform in Pakistan: A Constitutional Amendment – Study Notes