Lawyers say 26th Amendment Bill 'biggest reversal' of judicial autonomy in 30 years

Hours after the coalition government pushed the contentious 26th Amendment Bill, 2024, through the Senate, leading legal experts on Sunday dubbed the constitutional package as the worst setback to the independence of the judiciary in the last three decades.

The disputed constitutional amendment bill sailed through the Senate and the National Assembly tonight, despite the opposition from the Pakistan Tehreek-e-Insaf (PTI). The House voted 65-4 to approve the bill with the required two-thirds majority.

Reacting to the late-night development, renowned lawyer Barrister Asad Rahim Khan said: “The post-Musharraf consensus is officially over. The 26th Amendment is the biggest reversal for judicial independence in three decades.”

"Appointments of judges have been handed back to the executive, which – as our history is witness – should have no business in such a selection," the lawyer added.

Asad said that the method for handpicking the chief justice of Pakistan, among a list of three, would ensure a "game of thrones" every few years, thus wrecking a system that was until now immune to such intrigue.

The judiciary-oriented constitutional package proposed a set of constitutional amendments, including provisioning a fixed three-year term of the CJP.

A special parliamentary committee — which has the representation of all political parties — has been discussing various proposals, including the establishment of constitutional benches, restructuring of the Supreme Judicial Council, and the formation of a Special Parliamentary Committee that will suggest names from amongst the three most senior judges of the apex court for the CJP's appointment.

He said that judges that were confirmed as future chief justices up until yesterday would likely retire before ever making it, in favour of a court that would naturally prefer pliant or partisan candidates.

“Taken together, the 26th amendment has dealt a body blow to Pakistan’s democracy and its constitutional order.”

Talking to Geo.tv advocate Salaar Khan said: “There will, for instance, be no new parallel court, but there will be a parallel hierarchy within the existing high courts and the Supreme Court with separate presiding judges who do not have to be the chief justice.”

"Whether it is in terms of initial appointment to the courts, or to be made the chief justice, or a presiding judge, or in terms of getting to serve on a constitutional bench, judges will now be beholden to politicians," he added.

Khan said counterbalancing the power and roles of the judiciary, the parliament, and the executive was a delicate task.

“This amendment may be an improvement on the original drafts, but it doesn’t approach that balance with the considered care that it deserves. Of course, it is fairly evident why that is so,” he added. 

In his response, Barrister Muhammad Ahmad Pansota clarified that his comment was primarily focused on the legality of the constitutional amendment. He referred to the adopted process as "tainted".

"The amendment should have been floated in the House. The whole purpose of the constitutional amendment is to debate the Constitution. It should take time, though this is not specifically mentioned in Article 238-39, but this is the essence of a constitutional amendment that the houses debate over the whole issue, which is the Senate and then the National Assembly," he stressed.

"Secondly, the spirit of the amendment appears to be contrary to the principle of independence of the judiciary. Also, the seniority principle, which has been laid down in Al-Jehad Trust case," said Barrister Pansota, adding, "It is an attempt to control the master of roster or the very process through which cases are fixed in the SC. Essentially meaning thereby that it impinges upon the independence of the judiciary."

"Apart from that, the whole purpose of the constitutional amendment seems to be controlling or regaining control by the executive. The executive should have control, but it must not surpass the confines mentioned in the Constitution of Pakistan. I believe that it does here in that case," he said.