The Dual Path of Pakistani Courts: The 26th Constitutional Amendment - a hit to Justice

Translated by Giulia Maffeis

PAKISTAN – On October 21, 2024, the 26th Amendment, also known as the “Constitutional Package,” was passed. This amendment, mainly focused on the judiciary, strips the Chief Justice of Pakistan (CJP) of his office powers, limits the occupancy of the Chief Justice to three years, and grants the Prime Minister the authority to appoint the Chief Justice from among the three most senior Supreme Court judges.

Approval Process for the Constitutional Bill

Negotiations lasted months and culminated in an overnight session beginning on Sunday, October 20, 2024. The bill was approved by the Senate with a two-thirds majority, collecting 65 votes out of 100. The National Assembly, consisting of 336 members, passed the bill with 225 votes—just exceeding the 224 required for approval. This marks a crucial victory for the Pakistan Muslim League (Nawaz) (PML-N), which had faced challenges in September attempting to block the amendments due to unsuccessful engagement with the Jamiat Ulema-i-Islam-Fazl (JUI-F).

The main point of contention was the proposal for a Federal Constitutional Court. The Pakistan Tehreek-e-Insaf (PTI) opposed it, while the JUI-F demanded its inclusion, which is now part of the law. Initially including 56 amendments, the draft was refined to a final version with 27 amendments after extensive deliberations. The National Assembly, presided over by Speaker Ayaz Sadiq, later advanced the bill to President Asif Ali Zardari for final signature under Article 75 of the Constitution.

Changes to the Judiciary's Structure and Functions

The amendments aim to rebalance the relationship between the judiciary and legislature by limiting the Supreme Court’s autonomy in various areas and introducing new procedures. These include establishing a parallel structure within the Supreme Court, whereby "constitutional judges," a specific group of magistrates, will exclusively handle constitutional matters, effectively replacing ordinary judges in this domain.

The selection of constitutional judges is governed by Part VII: The Judiciary, Chapter 1, Article 175A, which outlines the process for appointing judges to the Supreme Court, High Courts, and the Federal Shariat Court. The Chief Justice of Pakistan will no longer be automatically selected based on rank but will be chosen from the three most senior judges on the recommendation of a Special Parliamentary Committee (SPC). According to Clause 3A, this committee comprises 12 members: eight from the National Assembly and four from the Senate. Clause 3B introduces proportional representation of parliamentary parties based on their influence in the Majlis-i-Shoora (Parliament). The committee will forward its nominee to the Prime Minister, who will then submit it to the President for appointment.

The changes posed to Article 179 redefine the age limit for Supreme Court judges, making it at 65 years. A revision to Article 184 eliminates the Supreme Court’s original jurisdiction for suo moto actions. The Supreme Judicial Council (SJC), tasked with recommending and likely removing judges of the Supreme Court and High Courts, now has expanded powers to determine inefficiency without detailed criteria, which previously were limited to incapability or misconduct.

Controversial Reactions to the Reform

The reform has caused intense and polarized reactions. The Karachi Bar Association and the International Commission of Jurists (ICJ) have classified the law an attack on judicial independence. The United Nations Human Rights Committee, an independent body under the ICCPR, claims it violates Article 14 of the ICCPR, eroding the judiciary’s neutrality and increasing its susceptibility to government influence.

Santiago Canton, Secretary-General of the International Court of Justice, stated: "These amendments are an attempt to dominate the judiciary to executive control, betraying fundamental principles of the rule of law, separation of powers, and judicial independence."

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