Does the 26th Amendment Threaten Judicial Independence and the Rule of Law?

Abstract

This article focuses on the recent Twenty Sixth Constitutional Amendment passed by the Pakistani Parliament. It has raised many eyebrows because of its effects on the judiciary’s autonomy, the rule of law, and human rights. This article makes an attempt to analyze the changes brought about by the Amendment that modify the structure of the Judicial Commission of Pakistan (JCP), the selection process of the Chief Justice of Pakistan (CJP), and newly introduced grounds for the removal of judges on the grounds of “inefficiency” when the term has not been defined. This article examines these developments relative to international norms, especially the International Covenant on Civil and Political Rights (ICCPR) and the United Nations (UN) Basic Principles on the Independence of Judiciary. It also analyses the implications of these findings for the prospects of democratic governance in Pakistan, proposing that the Amendment impairs the judiciary’s autonomy, weakens its check on the executive and legislature, and infringes on the doctrine of the rule of law and fundamental rights. 

Introduction

The judiciary plays a crucial role in maintaining the balance of power between the branches of government and protecting human rights in any democratic state. Judicial independence is essential for any democracy to check and balance the government’s three arms: the executive, legislature, and judiciary. Representing the tripartite government structure, it offers checks and balances so that no houses subvert the constitutional-borne rights and freedoms. In Pakistan, though, the independence of the judiciary as a branch of government has always been on a weaker footing and vulnerable to abuse. This has made the judiciary sensitive to being harassed by the executive arm, military interference, and political influence, leading to its partial and non-independent exercise of power.[i]

The Twenty Sixth Constitutional Amendment, approved in October 2024, is one more step toward restricting judicial independence in Pakistan. It has brought considerable changes to the selection and management of the judiciary, with a particular emphasis on changing the composition of the Judicial Commission of Pakistan (JCP) and the procedure of appointing the Chief Justice of Pakistan (CJP). The amendment also provides vagrancy in the recall of judges through the provision that avails “inefficiency,” the meaning of which is yet to be established. This vagueness is unhelpful because it opens the door to the politicization of the judiciary, laying grounds for political retribution against the judiciary where the ruling party does not like a particular decision made by the judges.[ii]

As much as realistic reforms rationalizing judicial structure, transparency, and accountability are crucial to develop a healthy legal system, the Twenty Sixth Amendment seems to negate, instead of enhance, the spirit of the amendment. That is why altering the judicial appointment process—which is potentially politicized—together with mechanisms for removing certain judges, threatens the judiciary. This article argues that a judiciary lacking autonomy from the executive or legislative branches of a country cannot act as a watchdog checking instances of abuse of power by governments, thus failing to safeguard individuals’ rights. Moreover, the consequence of this amendment is a profound threat to the exercise of democracy in Pakistan. The presidency can be abused sufficiently to give the ‘brute force’ offices full rein, while the legislature can be similarly unbridled, creating the risk of authoritarianism. It might also decrease public confidence in the legal system because people may view justice as affiliated with politics, not serving justice.[iii]

Considering the internationally-recognized norms related to the right to vote as the manifestation of civil rights established in universal human rights covenants such as the ICCPR and UN principles, the changes carried out by the Twenty Sixth Amendment are concerning. The judiciary that monitors the respect for human rights and guarantees whether government operations are lawful is an essential component of a democracy. Consequently, any changes that oppose judicial independence jeopardize not only the rule-of-law principle but also the democracy of the state.[iv]

The Twenty Sixth Amendment may have been designed to address specific problems within the judiciary, but it has eroded judicial independence and democratic governance in Pakistan. As the appointment and removal process of judges has changed, the new vague criteria has increased the risk of interference in judicial operations from political branches, undermining the judiciary’s authority as an independent branch focusing on protecting the Constitution and rule of law.

Judicial Independence in Pakistan’s Constitutional Framework

Before the enactment of the Twenty Sixth Amendment, the Constitution of Pakistan had given some degree of protection to the judiciary, primarily through the mechanism of the Judicial Commission of Pakistan (JCP) and the Supreme Judicial Council (SJC). These were supposed to be in charge of physically appointing judges and taking them out, so the process was based on legal and professional factors, not political ones. The CJP was selected based on seniority, reducing the executive’s influence. However, Pakistan’s history is full of cases where the judiciary experienced threats from other branches of government.

The Supreme Court of Pakistan gained independence through the provisions of the 1973 Constitution.[v] However, subsequent amendments eroded these rights, especially during military administration. The Twenty Sixth Amendment represents a massive change in this dimension, exposing the judiciary to political vulnerability.

Significant Changes Introduced by the Twenty Sixth Amendment

1. Composition of the Judicial Commission of Pakistan (JCP):

The law changes the structure of the JCP, which is tasked with recommending judges to the Supreme Court and High Courts. Before the change, the JCP was mainly composed of judges who would give the judiciary the power to decide on the commission’s composition. However, the amendment provides for two members of the National Assembly, two members of the Senate, and a member who is either a religious or gender minority and has been nominated by the Speaker. It also provides political representation and decreases the number of judges in the JCP. Some of these changes allow political players to have a more direct impact on judicial appointments, compromising the judiciary’s neutrality.

2. Administrative Powers of the JCP:

The change also gives the JCP more power to select “constitutional chambers” within the Supreme Court and High Courts, vested with constitutional and original jurisdiction to protect essential rights and freedoms. This new power has raised the fear of developing politically controlled and influenced benches, defeating the natural principle of impartial justice.

3. Appointment of the Chief Justice of Pakistan:

The Twenty Sixth Amendment has also clarified that the CJP does not come from among the most senior Supreme Court judges. Consequently, in the case of Pakistan, CJP selection is restricted to a Special Parliamentary Committee (SPC) made of members of the National Assembly and the Senate, but from among the most senior three judges. This reflects that the process may be politically influenced, undermining judicial independence.

4. Grounds for Removal of Judges:

The amendment brings ‘efficiency’ as one of the grounds for removal of judges by the SJC, without defining ‘inefficiency’. For a long time, the impropriety of removal of a judge dealt with incapacity or misconduct only. The term ‘inefficiency’ is vague and subjective, exposing judges to politically influenced removals and worsening the state of judicial independence.

International Legal Standards on Judicial Independence

Judicial independence is becoming a significant focus of the diverse legal norms that exist today globally. Since the recent passage of the Twenty Sixth Amendment in Pakistan, there has been increasing concern among legal scholars and human rights activists that it departs from the universally recognized standards on judicial independence. Essential to these issues is the tension between the Amendment and Article 14 of the ICCPR to which Pakistan is a party. Article 14 entitles individuals to a free and fair trial by an impartial and independent tribunal. This right is among the core values of the rule of law and the administration of justice. Even though the UN Human Rights Committee that oversees compliance with the ICCPR has repeatedly stressed that the independence of the judiciary is one of the conditions of a fair trial, in recent years it has also highlighted the need for judicial appointment on transparent and meritocratic principles, free from political pressure.[vi]

Some of the provisions of the Twenty Sixth Amendment, especially those that change the membership and operation of the JCP and transfer the power of appointment of CJP to the SPC, are of much concern in light of the above international standards. As the amendment allows for the increasing role of politicians in the selection of judges, the judicial branch is threatened with losing its independence. It may become a tool of manipulation by executive and legislative powers.

Additional information on this aspect is available in the United Nations Basic Principles on the Independence of the Judiciary 1985 passed by the United Nations General Assembly. These principles state that a judge ought to serve in a judicial capacity without influence from any other person or body, ought to be hired on merit and professional suitability, and ought not to be removed by political influence. Most importantly, these principles require that any judge – as a public officer – could only be removed through impeachment for either misconduct or proven incapacity and only through a fair, transparent, and public process.[vii]

The UN Basic Principles further state that the distribution of cases within the judiciary should not be of concern to outsiders. This is instrumental in checking the politicization of docket assignment as the guidelines help assign cases without bias. Since the new Amendment integrates the role of politicians in selecting judges, it threatens to compromise this crucial check, leading to politically influenced determinations on caseloads and their resolutions.[viii]

Impact on the Rule of Law and Human Rights

This article explores how the institutional erosion of judicial independence through the passage of the Twenty Sixth Amendment has affected the general applicability of rule of law principles and the ability to protect human rights in Pakistan. Among the judiciary’s powers, the latter is expected to act as a watchdog of the executive and legislative branches, checking that they conduct their actions in accordance with the Constitution and laws. While restricting the judiciary’s independent decision-making capacity, the Amendment will likely distort this balance of power, potentially leading to the triumphant ascendancy of the executive branch.[ix]

Another significant concern relates to politicized benches which can be loyal to politicians’ decisions rather than the truth in politically sensitive cases. If judges have the impression that they need to serve their political masters, or if their appointments are made at the beck and call of certain politicians, then rule of law practices and human rights protections will be compromised. This can have a broad impact, especially where human rights are violated and courts are the only defense against the government.

Every branch of power is essential to a democratic state and an independent judiciary mirrors this. As the Twenty Sixth Amendment favors the executive and legislative branches at the expense of the judicial branch, a critical check on democracy is under threat. Self-governance is particularly crucial for the judiciary because it is one of the few institutions in the government with the capacity to check other branches as well safeguard citizens’ rights. If people view the judiciary as more of an appendage of political authority than an independent and impartial institution, they will perceive the institutional policing of law to have diminished.[x]

The depletion of judicial independence also has profound implications for preserving all constitutional liberties in Pakistan. Free and impartial courts are needed to define and apply constitutional safeguards for citizens’ rights, including the rights to life and liberty, freedom of speech and press, and the right to a fair trial. If judicial independence gets compromised, the judiciary cannot guarantee these rights or offer a neutral platform to aggrieved individuals seeking reparations against the executive branch’s unlawful actions.

The Amendment also has broader implications for the overall structure and mechanism of democratic institutions in Pakistan. All the aforementioned concerns mean a weakened judiciary to the extent that power in the country will be concentrated in the executive and legislative branches, without checks and balances to prevent authoritarianism. For this reason, when the court is not adequately funded or not independent of the government, there is a likelihood that the government will use its power selfishly. This process can destabilize new authorities in Pakistan and undermine the constitutional base of the nation’s political system.[xi]

Article 26 of the Constitution can be seen as an impingement on the independence of the judiciary in the Islamic Republic of Pakistan and, by implication, on the rule of law and defense of human rights. Through the Amendment, political institutions seem to have been given a raw deal on dealing with the judiciary, eradicating the basics of democracy and constitutionalism. This continuous erosion of judicial independence can have long-term impacts on Pakistan’s legal structure and its capacity to enforce the rule of law, as well as the rights and freedoms of the people of Pakistan.

Recommendations

Considering the stakes highlighted by the Twenty Sixth Amendment concerning the independence of the judiciary and the rule of law, it becomes imperative to enact amendments safeguarding the judiciary’s independence, increasing accountability, and bringing the country up to the standards of recognized states. The following recommendations seek to correct the evils of the Twenty Sixth Amendment and call on enhancing the judicial system’s efficiency, independence, and integrity.

1. Repeal or Revise the Twenty Sixth Constitutional Amendment

One of the most imperative requirements without further delay is to repeal or amend the Twenty Sixth Constitutional Amendment, especially concerning JCP composition. The amendment that gives more political control over the appointment of judges may isolate or even erode judicial independence. Thus, it is highly recommended to reform the JCP to increase its membership of judicial personnel and reduce the number and impact of politicians. These political actors should have limited participation in the screening, selection, and recruitment of judicial officers to minimize the adoption of political agendas. Restoring a more significant role to the JCP will also prevent the judiciary from becoming a tool for political factions or influencing judicial appointments.

2. Establish Clear and Objective Criteria for Judge Removal

Equally worrying is the language of the Twenty Sixth Amendment which is quite woolly on how a judge can be removed from office based on ‘inefficiency’ among other removable causes. There is also the need to preserve the political independence of judges, hence, national legislation should provide a clear, visible, and rational possibility of a judge’s dismissal in cases of gross misconduct or proven incompetence. For instance, vague terms such as ‘inefficiency’ have to be pointed out since they are bound to be politicized in most instances to justify removing certain judges deemed unfriendly to political power. Every possibility of removal by a judicial body should contain measures like procedural rights, review by a person other than the accused, or descriptions of misconduct or capacity that conform to the UN Basic Principles on the Independence of Judiciary.

3. Ensure Public Consultation and Transparency in Judicial Reform

Reforms of a constitutional nature should not be carried out without first inviting public participation and discussion. When the Twenty Sixth Constitutional Amendment was initiated, there was no open process and minimal involvement of interested parties, such as legal professionals, citizens, and organizations. Any future reforms in the judiciary must incorporate a rigorous and visible consultative process to incorporate several stakeholders. It will improve not only the quality of reforms but also the level of confidence in the judiciary and the activities of the legislature. Tangible policymaking enhances governance processes and meets people’s expectations of maintaining the sanctity of the judicial system.

4. Strengthen the Role of International Legal Standards in Domestic Reforms

Pakistan must devote itself to harmonize judicial reforms based on the international commitments of justice, judicial independence, and the supremacy of law. In this respect, international standards have embraced rules and principles of the ICCPR and the UN Basic Principles on the Independence of the Judiciary to help judicial systems remain immune to political interferences and capable of protecting fundamental human rights. Implementing these standards in domestic reforms would not only strengthen the judiciary’s independence but also regard Pakistan as a country that respects human rights and democratic principles of the international community. Frequent participation in the operation of international legal organizations, peer reviews, and collaborations with international judicial specialists could also contribute to domestic reforms aligning with global best practices.

Following the best international legal standards builds an independent judiciary that embodies improved resistance to political influence and enhanced capacity to protect the rights of individuals primarily involved in politically sensitive or human rights-oriented cases. If Pakistan sets a benchmark following international standards, it has the potential to construct a judiciary that is respected both domestically and globally.

Conclusion

The recent judicial crisis and the passage of the Twenty Sixth Amendment depict how judicial independence is in a critical position again and requires urgent steps to revise the Constitution to safeguard the judiciary from political intervention. The removal of judges involves amendments that must be repealed or revised to remove ambiguities in the process, enhance transparency for future reforms, and operate within internationally recognized legal norms. Pakistan can reinstate confidence in the justice system by staying true to the principles of judicial autonomy, defending citizens’ rights and freedoms, and contributing to democratic governance.

---

References

[i] Bazmi, S., & Qureshi, A. (2021). Separation of Powers: Prerequisite for a Stable Democracy. Pakistan Journal of Social Sciences, 41(4), 875-885.

[ii] Khan, I. A., & Khan, S. A. Judicial Appointments in the Superior Judiciary of Pakistan: A Comparative Analysis with the US. Journal of Law & Social Studies (JLSS), 6(1), 1-16.

[iii] Lodhi, M. (Ed.). (2024). Pakistan: The Search for Stability. Hurst Publishers.

[iv] Hussain, I., & Shah, M. N. U. H. (2024). An Overview of Human Rights in Pakistan in Context of Un Charter. GUMAN, 7(3), 34-44.

[v] Munir, A. I. (2024). The Constitutional Framework of the Rule of Law under the Pakistani Legal System: A Critical Appraisal. Available at SSRN 4708192.

[vi] Sommermann, K. P., Weber, A., Sommermann, & Weber. (2024). General Judicial Rights. In Writing Constitutions: Volume 2: Fundamental Rights (pp. 327-350). Cham: Springer International Publishing.

[vii] Awawda, O. (2024). Assessment of De Jure Judicial Independence of Constitutional Court according to International Guidelines. Const. Rev., 10, 202.

[viii] Stagg, J. Queer Judging, Straight Up: The Queer Judge and Judicial Systems. In Queer Engagements with International Law (pp. 185-205). Routledge.

[ix] Shah, N. A., & Awais, F. (2024). Critical Analysis of Partiality of Judges and its Impact on Legal Landscape of Pakistan. Annals of Human and Social Sciences, 5(4), 41-51.

[x] Salem, W. K. (2024). Seeing Like a Court Judicial Agency in Autocratic Regimes and Transition Politics: The Case of Egypt (Doctoral dissertation, University of Washington).

[xi] Ali, H. (2024). Crumbling Pillars: Understanding Institutional Decay in Indian Democracy. Journal of Development and Social Sciences, 5(2), 652-662.

---

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.