The 26th Amendment in judicial focus: Part - I

There are multiple ways to look at the 26th Constitutional Amendment that Pakistan’s parliament passed on Oct 21, 2024. Since the passage of the 25th Amendment in May 2018, there was a gap of over six years between the two amendments.

It is worth recalling that under the 25th Amendment, the Federally Administered Tribal Areas (Fata) and Provincially Administered Tribal Areas (Pata) merged with the province of Khyber Pakhtunkhwa in 2018. 

Both amendments passed under the PML-N governments displayed a certain level of alacrity and lack of transparency as if there was no room for debate and discussion with civil society and with constitutional experts. 

The public at large was also not aware of the details of both amendments till the last moment as the drafts kept changing and the government appeared to be in a hurry to bulldoze the amendments through both houses in a manner smacking of undemocratic practices.

The International Commission of Jurists (ICJ) has called the 26th Amendment “a blow to judicial independence, the rule of law, and human rights protection”. 

The judiciary in Pakistan remained subdued under military dictatorships, barring a few judges who refused to take oath under various legal — rather illegal — frameworks and provisional constitutional (read: unconstitutional) orders. 

After the 18th Amendment in 2010, parliament was in a better position to assert its authority but the then chief justice of Pakistan, Justice Iftikhar Chaudhry, literally forced parliament to pass the 19th Amendment that granted unprecedented powers to the chief justice and his brother judges.

Since then, the apex court nearly always asserted its authority in an unsavoury — and at times unconstitutional — manner. The removal of two elected prime ministers — Yusuf Raza Gilani and Nawaz Sharif — within a span of five years from 2012 to 2017; the appointment of monitoring judges; and the highly controversial and contradictory decisions tarnished the image of the judiciary, which was already not so bright. 

Be it Justices Nisar, Khosa, Gulzar, or Bandial, hardly any left an enviable record.

It would not be unfair to say that in the past 70 years, the judiciary has played a role that repeatedly undermined democracy and turned the constitution upside down. 

Before discussing the provisions of the 26th Amendment, it is better to look at the judicial and political contexts between 2018 and 2024 — from the 25th to the 26th amendment. 

In this period, the chief justices who served were: Justice Saqib Nisar who retired in January 2019 after serving for slightly over two years; Justice Asif Saeed Khosa who retired in Dec 2019; Justice Gulzar Ahmed who retired in February 2022 after serving for two years; and Justice Umar Ata Bandial served as the CJP from February 2022 to September 2023 when Justice Qazi Faez Isa took over for a year.

There are merits and demerits of the 26th Amendment but before passing a judgment, a look at the past chief justices is not out of place. Even in the 21st century, Pakistan has witnessed numerous controversial verdicts by judges who were more interested in threatening politicians and attracting media attention. 

At times it appeared that the entire politics of the country revolved around the CJP. Since there were numerous high-profile cases in the Supreme Court, it assumed an unprecedented authority that was not always used judiciously.

Chief Justice Saqib Nisar’s Supreme Court disqualified Nawaz Sharif for life and declared him ineligible to lead his party, though there was no constitutional provision under which any judge could justify the verdict. Justice Saqib Nisar during his tenure as the CJP from Dec 2016 to January 2019 took several suo-motu notices citing ‘independence of judiciary’ as a pretext.

Justice Nisar used extraordinary powers under Article 184(3) as a routine and indulged in matters pertaining to education, health, and even water. He intervened in mobile-recharge tax deduction and visited hospitals to check facilities and regularly told off government officials and even senior journalists and human rights activists. 

Justice Saqib Nisar took suo-motu notice to direct the federal government to make plans to build the Diamer-Bhasha and Mohmand dams and launched a huge campaign to collect funds from the public.

After Justice Nisar’s retirement, Justice Asif Saeed Khosa assumed office and drew the ire of nearly everyone. Even before becoming the chief justice he had been member of the benches that disqualified two prime ministers — one each from the PPP and the PML-N. 

As chief justice, he directed parliament to regulate the appointment of army chiefs. He also raised serious concerns over the conduct of two high court judges. On account of his ruling, the Supreme Judicial Council (SJC) initiated proceedings of misconduct against them.

As an SJC member, he wrote an opinion recommending to the president of Pakistan that he remove former Islamabad High Court judge Shaukat Aziz Siddiqui. He was also famous for citing Kahlil Gibran and Mario Puzo in his judgments and quoted from them.

After assuming office of the CJP in December 2019, Justice Gulzar Ahmed repeatedly criticised the PPP government in Sindh as he focused on the issues of encroachments, land conversion, and misappropriation in Karachi. 

In February 2021, under Chief Justice Gulzar Ahmed a five-member bench of the Supreme Court issued an order banning Justice Isa from hearing cases involving Imran Khan on the pretext that Justice Qazi Faez Isa had already filed a petition against the then prime minister Imran Khan in his personal capacity against the proposed plan to distribute Rs500 million development fund each among PTI lawmakers. 

In June 2021, Justice Gulzar ordered demolition of properties across Karachi.

Justice Gulzar even before becoming the chief justice was on the two most confrontational implementation benches that oversaw the implementation of the court’s NRO judgment and the bench overseeing the implementation of the court’s judgment on the law and order situation in Karachi.

In June 2020, a 10-member Supreme Court bench that Justice Bandial led, threw out the presidential reference against Justice Qazi Faez Isa and termed it invalid with a 9-1 majority.

Seven of the 10 judges ordered the Inland Revenue Department and the FBR to seek explanations from the judge’s wife and children on the nature and source of funding for the three properties in their names in the UK and submit a report to the SC registrar. 

Justices Maqbool Baqar and Justice Mansoor Ali Shah opposed the majority decision on an FBR inquiry.

To give another example of how the top judiciary had intervened in politics, we can recall the judgment on Article 63-A wherein Chaudhry Pervez Elahi once again became the chief minister of Punjab.

It was a highly controversial verdict and seemingly misinterpreted the constitutional provision about the defection of parliamentarians. This was direct interference into parliamentary politics by the judiciary but the assemblies were helpless and constitutional experts could only decry the verdict.

Then Justice Bandial took suo-motu notice on the delay of elections in Punjab and Khyber Pakhtunkhwa but overlooked the ill-intentioned and premature dissolution of the provincial assemblies at the behest of former PM Imran Khan who was bent upon creating chaos in the country.

To be continued...

Disclaimer: The viewpoints expressed in this piece are the writer's own and don't necessarily reflect Geo.tv's editorial policy.

The writer holds a PhD from the University of Birmingham, UK. He tweets/posts @NaazirMahmood and can be reached at:[email protected]

Originally published in The News