Understanding Pakistan’s 26th Constitutional Amendment:

Key Changes and Impacts on the Judicial System

Introduction

The 26th Amendment to Pakistan’s Constitution, approved by the Senate with a two-thirds majority, marks a significant shift in the country’s legal landscape. This amendment aims to restructure judicial processes, establish a Federal Constitutional Court, and redefine the roles of judges, parliament, and the executive. The ruling coalition, led by the Pakistan People’s Party (PPP), pushed for this landmark legislation, with PPP Chairman Bilawal Bhutto-Zardari playing a pivotal role. The amendment, also called the Constitutional Package, has sparked a heated political debate nationwide.

Key Features of the 26th Amendment

The amendment introduces several major changes:

1. Establishment of the Federal Constitutional Court:
   A new Federal Constitutional Court will be formed, with judges appointed by the President. This court will handle federal and provincial matters and cases related to fundamental rights under the original jurisdiction.
2. Judicial Appointments and Tenure:
   The amendment alters the process of appointing judges for the Supreme Court and High Courts, granting more authority to the Judicial Commission. The tenure of the Chief Justice is fixed at three years, and judges of the Federal Constitutional Court will retire at 68 years of age.
3. Supreme Court’s Power Transfer:
   The Supreme Court’s power to issue directives under Article 190 will be shifted to the Federal Constitutional Court. This transfer aims to ensure that both houses of parliament maintain authority over constitutional matters.
4. Parliament’s Role:
   The amendment increases parliament’s involvement in judicial appointments, aligning with the Charter of Democracy signed in 2006. This shift intends to restore balance between the executive and judiciary.
5. Military-Related Laws:
   Military laws cannot be changed without another constitutional amendment, maintaining existing rules until further changes are proposed and approved.

The Role of Bilawal Bhutto-Zardari and JUI-F

PPP Chairman Bilawal Bhutto-Zardari emerged as a key figure in advocating for the amendment. In a marathon speech, Bilawal praised JUI-F Chief Maulana Fazlur Rehman for his efforts to ensure the amendment’s success. Bilawal emphasized the historical nature of the amendment, stating that it was passed with complete political consensus.

Passage in Senate and National Assembly

The 26th Amendment Bill was first approved by the Senate with 65 votes in favor and only four against. The breakdown of votes included PPP (24), PML-N (19), JUI-F (5), MQM-P (3), and others, while PTI abstained from voting.

Following the Senate’s approval, Law Minister Azam Nazeer Tarar presented the bill in the National Assembly, seeking 224 votes to enact it into law. Despite PTI’s boycott, the ruling coalition, including PPP, PML-N, and JUI-F, expressed optimism for its passage.

Political Reactions

The amendment has generated diverse political reactions:

• Ruling Coalition:
  Leaders from PPP, PML-N, and JUI-F commended the amendment, highlighting its potential to restore the parliament’s dignity. Bilawal Bhutto-Zardari reaffirmed the PPP’s commitment to enacting the changes, even without PTI’s support.
• PTI Criticism:
  PTI’s opposition leader, Omar Ayub Khan, criticized the amendment, terming it a threat to judicial independence. PTI claimed that their lawmakers were coerced and threatened during the legislative process, labeling the amendment as unconstitutional.
• Mixed Public Response:
  Social media users expressed a range of opinions, from applauding the government’s efforts to restore parliamentary supremacy to condemning the perceived politicization of the judiciary.

Impacts on the Judicial System

The 26th Amendment is expected to reshape Pakistan’s judicial system in the following ways:

1. Judicial Independence Concerns:
   Critics, including PTI and prominent lawyers, argue that the amendment undermines judicial independence by increasing executive influence over appointments. This has raised fears of potential politicization of the judiciary.
2. Parliamentary Authority:
   The amendment enhances the parliament’s role in judicial matters, making it more involved in upholding democratic principles outlined in the Charter of Democracy.
3. Long-Term Reforms:
   Proponents claim that the amendment sets a precedent for broader legal reforms, potentially improving judicial efficiency and ensuring a fairer system of checks and balances.

Conclusion

The approval of the 26th Constitutional Amendment represents a significant shift in Pakistan’s legal framework. While it aims to restore parliamentary dignity and balance judicial powers, its impact on judicial independence remains controversial. The coming weeks will reveal how effectively the amendment reshapes the judicial landscape and whether it aligns with the broader democratic aspirations of the country.