October 21, 2024
By Rana Malhi & Rehan Piracha
LAHORE
The 26th Constitutional Amendment, which President Asif Ali Zardari assented to on October 21, has sparked controversy among senior lawyers. Many of them believe it undermines judicial independence in the country.
According to a notification issued by the National Assembly secretariat published in the Gazette of Pakistan, the Constitution (26th Amendment) Act, 2024. with 27 clauses “received the assent of the President on the 21st October, 2024”. This followed the approval of the amendment by both houses of parliament with a two-thirds majority.
The 26th Constitutional Amendment modified the procedure for appointing judges to the Supreme Court and high courts. It has also introduced the formation of constitutional benches in high courts for the first time. Voicepk spoke to senior lawyers about how these amendments would affect the apex judiciary in the country.
Former Law Minister Khalid Ranjha believes that the apparent purpose of the constitutional amendment is to allow the ruling coalition to appoint judges of their choice to the higher judiciary. “The government bulldozed the legislation through parliament so that it could appoint judges of their liking,” Ranjha told Voicepk. Regarding the formation of the first-ever constitutional benches, the former law minister opined that it was nothing unprecedented in the country.
“The constitutional bench will work similar to the Federal Shariat Court which is like a separate bench of the Supreme Court.”
Senior lawyer Salman Akram Raja, affiliated with the Pakistan Tehreek-e-Insaaf, argued that the judicial independence gained over the past 40 years has been undermined by the 26th Amendment.
“The Constitutional Bench has been reduced to a toothless body that we saw in the shape of the Commission of Inquiry on Enforced Disappearances (COIED),” Raja told reporters in a press conference in Lahore. Now all superior courts would face a fate similar to the COIED that has failed to convict a single person over enforced disappearances in the country, he added.
Amjad Shah, a member of the Pakistan Bar Council, stated that lawyers had objected to the amendment of Article 215-A, which relates to the continuation of existing members of the Supreme Judicial Council until new members are appointed, but their recommendations were rejected. He believes that the constitutional amendment will improve the performance of the judiciary.
According to Salahuddin Ahmed, former president of the Sindh High Court Bar Association, it has become more difficult to file cases against the government for constitutional violations.
The power to form constitutional benches has been vested in a judicial commission where government members will have a majority. By changing the procedure for appointing judges to the high courts, the independence of the judiciary has been compromised.
Former Additional Attorney General Tariq Khokhar believes that the sole purpose of the 26th Amendment was to divide the Supreme Court. Judges will now be compelled to seek the favor of the government to become the Chief Justice.
Khokhar took exception to the hasty and secretive manner in which the constitutional amendment was passed in both houses of Parliament. In his view, any constitutional amendment by an unrepresentative legislature cannot constitute valid legislation. “There is sufficient evidence to conclude that not all parliamentary votes were cast or secured freely and fairly,” he told Voicepk.net, adding that the amendment bill was imposed thereby violating parliamentary sovereignty.
Khokar questioned the serious curtailment of the independence of the judiciary. “The breakup of the Supreme Court by constituting constitutional benches will diminish and fragment the superior judiciary and violate the separation of powers principle,” he emphasised.
Senior lawyer Abdul Moiz Jaferii views the 26th Amendment as an interference by parliament in the independence of the judiciary. The National Assembly committee will now have the authority to review the performance of judges, which will prove to be the sword of Damocles over their heads, he added.
In essence, the 26th Amendment has sparked significant debate and controversy among legal experts in Pakistan. Many believe that it undermines judicial independence and gives the executive branch greater control over the judiciary.