Pakistan Passes 26th Constitutional Amendment, Reshaping Judicial Appointments

Pakistan Passes 26th Constitutional Amendment, Reshaping Judicial Appointments

On October 26, 2024, Pakistan’s National Assembly passed the 26th Constitutional Amendment Bill, granting legislators greater authority in appointing the country’s chief justice. The move is widely viewed as an attempt to sideline the judiciary, which has often issued rulings favorable to jailed former Prime Minister Imran Khan.

Context

There are tensions between the current government and former Prime Minister Imran Khan. Khan is  imprisoned since August 2023 on charges deemed as politically motivated. Khan was originally arrested on charges related to alleged illegal sale of state gifts,known as the "Toshakhana" scandal.

Khan’s party, Pakistan-Tehreek -Insaaf denounce election rigging and judicial interference.  The government, citing security concerns, has banned protests in Islamabad and deployed heavy police and paramilitary forces to deter unrest. Measures include cutting off the internet and banning the use of VPNs.

What is the 26th Constitutional Amendment Bill?

The bill significantly alters the process for appointing the Supreme Court’s chief justice. Instead of the seniority-based system, a parliamentary committee will now make the selection. Additionally, the chief justice will serve a fixed three-year term. This would allow for Parliament to directly decide who is at the head of the Pakistani legal system.

However, it should be noted that the current composition of the Pakistani parliament favours the incumbent government, as two thirds of the Parliament are composed of the Pakistani Muslim League (PML-N) , the current government’s political party, and Bilawal Bhutto’s Pakistan’s People Party (PPP), forming a coalition. Therefore , jailed former Prime Minister Imran Khan’s party, Pakistan Tehreek e Insaf (PTI) would have no say in the vote.

The bill comes against the backdrop of increasing tensions between the judiciary and the government. Earlier this year, the Supreme Court and other courts issued decisions favorable to Khan, including rulings against efforts to sideline his party in the February general elections. The elections, which were marked by allegations of rigging, have left relations between the government and the judiciary fraught. Time and time again, the judiciary has ruled in favour of Imran Khan, creating a sense of illegitimacy in regards to the current government.

The timing of the amendment is also significant. Chief Justice Qazi Faez Isa is set to retire soon.Under the previous system, his successor would have been Justice Mansoor Ali Shah, a judge perceived as sympathetic to Khan. The new amendment eliminates this possibility and establishes a system to create senior groups of judges tasked with constitutional matters, effectively curbing judicial activism.

Reactions

The amendment has drawn sharp criticism from opposition leaders, particularly those from Khan’s PTI party. Omar Ayub Khan, PTI’s opposition leader in the National Assembly, condemned the bill as an assault on judicial independence, stating “these amendments are akin to suffocating a free judiciary. A government formed through rigging cannot amend the constitution.”

Prime Minister Shehbaz Sharif, however, hailed the amendment as a step towards the supremacy of Parliament. In his remarks, he called the passage of the bill “a historic day” and an example of “national solidarity and consensus.”

Analysts have expressed mixed views on the amendment. Bilal Gilani, head of a prominent polling agency, noted that while it brings balance to judicial activism, it also risks creating a judiciary more compliant to the government’s interests.

The amendment’s passage has heightened concerns about escalating tensions between Pakistan’s government and judiciary. A Dawn editorial warned that these changes could spark a “new standoff” between the legal fraternity and the state. With Khan’s popularity undiminished and his supporters continuing to rally despite a severe crackdown, Pakistan’s political and judicial landscape remains deeply polarized.