26th Constitutional Amendment

Introduction
This is the most recently passed and the 26th constitutional amendment in
Pakistan’s Constitution of 1973. It is one of the most important and
influential amendments in the history of constitutional amendments in
Pakistan. Some of the other important constitutional amendments are
given below:

The 8th constitutional amendment was also considered a very important

one at that time. It was taken in a negative sense. The president got the
arbitrary power to dismiss the power and therefore had the power of
dismissing the prime minister and his executive cabinet. Hence, in a
single go, the power was shifted to the hands of the president through
the 8th constitutional amendment. This amendment was used liberally by
two presidents. The first one, Ghulam Ishaq Khan who dismissed the
Government of Pakistan People’s Party and then the Government of
Muhammad Nawaz Shareef. The second one, President Farooq Leghari
dismissed the Government of Pakistan People’s Party. The 58(2B) was
used four times, that was introduced in the 8th constitutional amendment.
Not only this, but also the presidential electoral college was expended
and other Islamic provisions were also added in the 8th constitutional
amendment. It was a comprehensive one.

In the 13th constitutional amendment undid the 8th constitutional

amendment, and the parliamentary independence and supremacy was
restored from the president. Presidential arbitrary powers were
dissolved. Hence, the parliamentary spirit was restored in the 13th
constitutional amendment.

Defection clause was introduced in the 14th constitutional amendment.

The reason for this was to stop the changing loyalties of the
parliamentarians due to the pressure from non-democratic forces. This
amendment was passed.

This amendment was related to Islamic provisions. However, this was

never passed by the senate.
The 13th amendment was reversed by the 17th amendment in 2003 and it
was passed. The presidential powers were restored. The term of Prime
Minister and Parliament were subject to the mercy of the President and
the President at that time was General Pervaiz Musharraf. The
parliamentary supremacy of the parliament was challenged again and
president became the arbitrary ruler in Pakistan.

The 18th amendment restored the powers of parliament and prime

minister from the president. NWFP was renamed as KPK. It is the
lengthiest and so far the most impactful amendment in the constitutional
history of Pakistan. The reason for this was that it touched upon almost
100 articles out of 280 articles of the Constitution of 1973. Changes
were made to judiciary, federal structures were changed, fundamental
rights were altered and many more comprehensive reforms were made.
That is the reason 18th amendment is the most comprehensive and
lengthy amendment of the constitutional history of Pakistan so far.
However, after it was passed, the role of parliament was enhanced in the
appointment of judged. But the judges of supreme court interfered at that
time and protested for the 19th amendment to be passed.
The supreme court at that time forced that parliament to surrender its
power of the appointment of judges. So in this context, the 18th
amendment nullified the spirit of the 18th amendment regarding the
appointment of the judges of the Supreme Court.

Recently, the 26th amendment was passed which is considered to be the

restoration of the true spirit of the 18th amendment in terms of undoing
the power to the supreme court through the 19th amendment. Through
this amendment, the rebalancing of the powers of parliament and
judiciary happened. Historically, the arbitrary powers were taken from
the presidents and now taken from the judiciary in order to have a
balance of powers. The parliament made sure that the judiciary does not
interfere in the parliament’s affairs because earlier two prime ministers
were dismissed by the judiciary. The 26th amendment was implemented
to deal with the problem of judiciary. Any parliamentary government
will be benefited from this amendment. This amendment was brought by
the PML-N government with the help of the coalition partners. The main
purpose of passing this amendment was that the parliamentary forces
were feeling that the judiciary and the supreme court judges have
become too much powerful and dictating in terms of decision making.
There were also speculations that the judiciary was full of Imran Khan’s
sympathizers and hence their power was limited. Therefore, the power
of judges was made limited and the parliamentary power was restored in
real sense. So that the judiciary cannot use undue influence and a
principle of parliamentary supremacy was ensured. That is was the 26th
constitutional amendment was considered a necessity. It was also
believed that under the guard of Justice Qazi Faez Eesa, this amendment
would not face any kind of backlash from the judiciary and that is why it
was passed before his retirement, and the appointment of new judges
and chief justice will be made under the new procedure.

Background
History of constitutional amendments
Political Context of 26th constitutional amendment
Main features of 26th constitutional amendment:
1. Appointment of Supreme Court Chief Justice
 This amendment has changed the process of the appointment of the
Supreme Court Chief Justice. Previously, the senior most on the basis
of years of service would be elected as the Chief Justice of the
Supreme Court of Pakistan. However, this time the process has been
changed and a special parliamentary committee is established under
the 26th Constitutional Amendment. This committee is comprised of
12 members, 8 from the National Assembly and 4 from Senate. These
representatives were chosen on the principle of proportion of the
party representation for both National Assembly and Senate. These 12
members will choose one of the top three senior most justices of the
supreme court as the Chief Justice of the Supreme Court of Pakistan
after the retirement of the previous Chief Justice. This would be based
on a two-third majority which means 8 out of 12 votes have to in
favor of the justice to be appointed as the Chief Justice of Pakistan.
Hence, through the 26th Constitutional Amendment, the role of the
parliament in the judiciary was enhanced. Following the same
procedure, the current Chief Justice Yahya Afridi was appointed as
the Chief Justice by surpassing the other two senior most justices as
he was the third most senior among the three.

2. Appointment of Justices of Supreme Court

Besides Chief Justice, the other justices are 34 in number in Pakistan.
Previously, the appointment of justices would be executed the judicial
commission. This commission would refer judges to the
parliamentary committee. The later had from limited to almost no
power in terms of rejected a name that was proposed by the judicial
committee. Hence, following the procedure, the Prime Minister
would appoint the justices through president. However, now the
judicial commission and parliamentary committee are merged
renamed to the Judicial Commission of Pakistan (JCP). Now, under
the 26th Constitutional Amendment, the total number of the members
 of Judicial Commission of Pakistan is 13. Out of these 13, one will
be the Chief Justice of Pakistan who will preside the meeting, four
other senior most justices are also the members of this committee
and four members from the parliament having two from the National
Assembly (one appointed by the leader of the house and the other by
the leader of the opposition) and two from the Senate (one appointed
by the leader of the house and the other by the leader of the
opposition), one person belonging to religious minorities or a
woman (but they must fulfill the qualification of the member of
parliament) (appointed by the speaker of the National Assembly),
Law minister (a member of federal government), Attorney
General (representative of the federal government), One member
from the Pakistan Bar Council. Hence, among these 13 people, 7
are federal representatives which is a majority among 13. Therefore,
this parliamentary majority will choose the justices of Pakistan if the
vacancy and when the vacancy is vacant. These 13 members are
called the Judicial Commission of Pakistan. Adding further, anyone
can become a justice in the supreme court if they fulfill the criteria of
a justice. However, if there are multiple candidates for limited seats,
then the judicial commission will choose by giving recommendations
to the Prime Minister. Now that the commission has a majority in
the parliamentary members, they will have a major say in the
appointment of justices of the supreme court.

3. Establishment of Constitutional Bench

Constitutional Bench is established under the 26th Amendment on the
Constitution of Pakistan. This bench will deal with the constitutional
cases of Pakistan. It consists of a minimum of 5 members. Currently,
it has 7 members. These 5 member will be appointed by the Judicial
Commission of Pakistan for the Constitutional Bench. It will hear
cases related to the Constitution. These cases include Judicial
 Reviews, Suo Moto, Original Jurisdiction of Supreme Court,
Presidential Cases and any other case related to the Constitution of
Pakistan, 1973. Hence, any case related to the Constitution of
Pakistan will not be taken by the Supreme Court but by the Judicial
Constitutional Bench. According to the 26th Constitutional
Amendment, the Constitutional Bench will be presided by the senior
most member of this bench.

4. Performance of High Court Judges

The performance of the judges of all the five high courts in Pakistan
will be evaluated by the Special Parliamentary Committee (7
members of the Judicial Commission of Pakistan).

5. Ending Riba
Another major change was the end of Riba (unjust or exploitative
gain made in business or trade).

6. Term of CJP
The term of the Chief Justice Supreme Court of Pakistan is 3 years.
After 3 years he/she will be retired. After 3 years of serving as a CJP,
they would not be allowed to take the charge as a judge even if he/she
is still having some years remaining in their retirement.

7. Chief Election Commissioner’s Term

Even if the term of the Chief Election Commissioner is completed, he
will continue to serve as the Chief Election Commissioner until and
unless his successor is chosen. This will work as a stop gap
arrangement in case of the end of Commissioner’s term until the next
one is appointed by the process of the constitution.

8. Fundamental Right Addition

 Article 9(A) is included. Article 9(A) means to have a clean, healthy
and sustainable environment as a fundamental right.

Implications
Obviously, this amendment has polarized the society. There are many
who criticize these changes and many who appreciate them.

Positives
1. Strengthening Parliament
This amendment strengthened the parliament and indirectly
strengthened the people of Pakistan. The reason for this is that
Pakistan is a sovereign state where the government is the
representative of people. And parliament having a majority of say
means that the common people of Pakistan will have a say in the
major decisions of the judiciary. The 26th Amendment makes sure
that the unelected institutions could not dismiss the people or
powers of the elected institutions. A true parliamentary spirit has
been restored through this amendment.

2. Holding Judiciary Accountable

The judiciary is held accountable through this amendment.
Specially the scrutiny of high court judges will help the
parliamentary committee in recommendations in the judicial
commission of Pakistan when later on the high court judges will be
promoted to the supreme court. There would be some kind of audit
performance already present with the parliamentary committee on
the basis of which they will elevate the judges to supreme court.

3. Strengthening democracy
 4. Removing arbitrary powers
Through this amendment, arbitrary powers of the individuals have
been taken away. Previously, Chief Justices had arbitrary powers
like Suo Moto which they used to use in order to dictate. Hence,
the concentration of power has been broken with this amendment
so that these powers could not be misused.

5. Environmental benefits
Article 9(A) of the 26th Amendment makes sure that the
deteriorating environmental condition in Pakistan is overcome. It
forces the governments and authorities and even the private
companies to work for the clean environment which would be
beneficial for the entire nation.

6. Fast track decisions

Speedy disposal of the cases will occur by the establishment of the
Constitutional Bench because now the cases related to the
constitution of Pakistan will be put in front of the Constitutional
Bench and not the Supreme Court of Pakistan. The cases of the
ordinary people will be disposed off quickly.

Criticism
1. Impacting independence of judiciary
Through this amendment, the independence of the judiciary is
dissolved by making it subordinate to the parliament and
executive. The Judiciary has to be independent to ensure justice.
Mostly litigations against the government will be biased because of
the involvement of government itself in the judiciary. The reason
for this is the majority of parliament members in the Judicial
 Commission. This will create all kind of ills in the governing
system of Pakistan and it will make the parliament and
parliamentarians unaccountable and not responsible to any
institution in Pakistan and not even to the rule of law.

2. Politicizing judiciary
The possibility of politicization of the judiciary is now greater
because of the parliamentary committee and its role in the
appointment of the Chief Justice of Pakistan. Historically, Pakistan
has seen the politicization of judiciary; however, this time it will be
significantly greater as compared to the past. Judges will now try
to appease the government and the political parties to gain
promotions at the supreme court level or at the level of
constitutional bench or even to the post of the Chief Justice of
Pakistan. In other words, it will create a competition among the
judges rather than making them independent.

3. Negative impacts on protections of fundamental rights

It is believed that this amendment will affect the fundamental
rights of people. In a country like Pakistan, fundamental rights are
largely to be protected by the judiciary and if judiciary becomes a
subordinate to the parliament then the protection of fundamental
rights will remain just a distant dream. Government will feel less
accountable for the human rights violation in the territory of
Pakistan.

4. Over litigation

5. Possibilities of intra-judiciary competition and conflict

Conclusion
To conclude, the 26th Constitutional Amendment like any other
amendment, it has become controversial in a politically charged
environment. There are people who appreciate it and people who
criticize it but in long term despite having ills it will likely strengthen
democracy and help institutions subordinate to the will of the parliament
which is a true representative of the people.