The 26th Amendment to the Constitution of Pakistan 1973 has sparked intense debate among legal experts, politicians, and civil society. Introduced with the purported aim of improving the judicial system, the amendment has raised concerns about its true intentions and potential consequences.

Background and Context
The 26th Amendment seeks to modify Article 175A of the Constitution, which deals with the appointment of judges to the Supreme Court and High Courts. The changes aim to alter the composition of the Judicial Commission of Pakistan (JCP) and the Parliamentary Committee responsible for approving judicial appointments.

Implications for Judicial Independence
The 26th Amendment’s changes to the judicial appointment process may enable the executive branch to exert undue influence over the selection of judges. This could compromise the impartiality and autonomy of the judiciary, potentially leading to a decline in the rule of law.

As the Supreme Court of Pakistan noted in the landmark case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), “the independence of the judiciary is a fundamental feature of the Constitution.” Any attempt to undermine judicial independence would be ultra vires.

Constitutional Amendments and Their Implications
The following articles of the Constitution have been amended, which may undermine the independence of the judiciary:

Article 175A

• The amendment changes the composition of the Judicial Commission of Pakistan (JCP), reducing the number of Supreme Court judges and increasing the representation of the executive branch.
• This alteration may enable the executive to exert greater influence over the appointment of judges.

As the Supreme Court held in Muhammad Azhar Siddique v. Federation of Pakistan (PLD 2011 SC 997), the Judicial Commission’s composition must ensure the dominance of judicial members to safeguard judicial independence.

Article 209

• The amendment modifies the procedure for removing judges, making it easier for the executive to initiate removal proceedings.
• This change may compromise the security of tenure for judges, making them more susceptible to executive pressure.

In Supreme Court Bar Association v. Federation of Pakistan (PLD 2016 SC 773), the Supreme Court held that the removal of judges must be based on clear and cogent evidence, and that the executive’s role in the removal process must be limited to prevent undue influence.

Article 268

• The amendment empowers the Parliament to make laws regulating the appointment, removal, and terms of service of judges.
• This provision may enable the executive to exert greater control over the judiciary through legislative measures.

As the Supreme Court emphasized in Federation of Pakistan v. Saeed Ahmed Khan (PLD 2017 SC 132), Parliament’s power to make laws regarding judicial appointments and removals must be exercised in a manner that respects judicial independence.

Constitutional Benches:
Supreme Court and High Courts
The amendment also impacts the provisions related to constitutional benches in the Supreme Court and High Courts:

Article 184(3)

• The amendment reduces the minimum number of judges required to constitute a constitutional bench in the Supreme Court from 5 to 3.
• This change may compromise the effectiveness and independence of the Supreme Court in deciding constitutional matters.

In Watan Party v. Federation of Pakistan (PLD 2012 SC 292), the Supreme Court held that the composition of constitutional benches must ensure that the court can effectively decide constitutional matters without undue influence.

Article 199(3)

• The amendment reduces the minimum number of judges required to constitute a constitutional bench in the High Courts from 3 to 2.
• This change may undermine the ability of the High Courts to effectively decide constitutional matters and provide checks on the executive.

As the Supreme Court emphasized in Imran Khan v. Federation of Pakistan (PLD 2013 SC 562), the composition of constitutional benches in High Courts must ensure that the court can effectively decide constitutional matters without fear or favor.

Impact on the Rule of Law
The 26th Amendment’s implications for the rule of law are significant. By undermining judicial independence, the amendment may compromise the ability of the judiciary to hold the executive accountable for its actions.

Conclusion
The 26th Amendment’s implications for the judiciary are far-reaching and potentially damaging. The protection of judicial independence is paramount, and any attempts to undermine it must be carefully examined and challenged.

Recommendations
To address concerns about the 26th Amendment, the following steps may be considered:

1. Constitutional Review
   The amendment should be reviewed by the Supreme Court to determine its constitutional validity.
2. Transparency and Consultation
   The government should engage in transparent consultations with stakeholders, including the judiciary, bar associations, and civil society, to address concerns and propose amendments.
3. Protection of Judicial Independence
   The government and Parliament must ensure that the amendment does not compromise the independence and autonomy of the judiciary.

Muhammad Imran
Advocate. www.capitallawcompany.com