Since its inception, Pakistan’s 1973 Constitution has been amended many times to keep pace with the country’s evolving political and social landscape. These changes, while necessary, often spark debates about how much power should be given to the government, the judiciary, or the people. The most recent major change was the 25th Amendment, passed in May 2018. Now, the country is embroiled in another critical debate over the proposed 26th Amendment, which has set off a tug-of-war between the government and the judiciary.
The draft of the 26th Amendment, known as the “constitutional package,” has raised eyebrows among legal experts and opposition parties alike. At its core, the bill aims to change how much control the government can exert over the judiciary. The idea of amending the Constitution isn’t new-laws need to evolve as society changes-but when the amendments target the very system designed to keep the government in check, it raises concerns about the erosion of judicial independence.
One of the main proposals in the 26th Amendment was to create a new federal constitutional court that would work alongside the Supreme Court. This new court would handle issues that require policy clarification, potentially shifting significant judicial power away from the Supreme Court. Additionally, the amendment seeks to extend the retirement age of judges in this new court to 68, compared to 65 for other judges.
The tension between the government and the judiciary is a battle over the very foundation of Pakistan’s democracy.
Another proposed change is that the president, under the recommendation of the Prime Minister, would nominate the Chief Justice of this new court-a move that could give the executive branch more influence over judicial appointments.
Perhaps the most controversial part of the amendment is the proposal to reverse a key ruling made by the Supreme Court in 2022. That ruling decided that if a legislator voted against their party line, their vote wouldn’t count. The government’s attempt to overturn this ruling has alarmed many, as it seems to be a step toward centralizing power, leaving less room for dissent within political parties.
The ruling coalition in the government has tried to rally enough votes to pass this amendment but has fallen short of the required two-thirds majority in both the National Assembly and the Senate. The National Assembly only managed to secure 214 votes, and the Senate collected 57-both missing the necessary thresholds to push the package forward. The repeated attempts by the government to get this amendment passed, despite its failures, signal just how high the stakes are.
Politicians and lawmakers have offered different perspectives on the proposed changes. Imran Siddiqi, a legislator, voiced his confidence, saying that the amendments might be presented to the parliament within days. He downplayed the controversy, suggesting, “This isn’t the end of the world.”
On the other hand, Maulana Fazalur Rehman, the head of the Jamiat Ulema-i-Islam (JUI-F), fiercely rejected the government’s proposals. He argued that these changes would undermine citizens’ fundamental rights, particularly by limiting the tenure of the Chief Justice of Pakistan to a fixed three-year term. For him, judicial tenure should be based on circumstances, not blanket rules. Adding to the opposition’s concerns, Sayed Zulfi Bukhari, a leader from the Pakistan Tehreek-e-Insaf (PTI), accused the government of using these amendments to target his party. “The whole point of these changes is to find a way to ban the PTI and send Imran Khan’s case to a military court,” he remarked, highlighting the perceived political motivations behind the constitutional package.
The legal community has voiced serious concerns about the long-term implications of these amendments. Many fear that if the government succeeds in pushing this bill through, it could turn the judiciary into a political tool rather than an independent body. Passing such amendments through presidential ordinance would bypass proper parliamentary debate and limit the legal profession’s ability to challenge them.
Critics argue that weakening the judiciary could have disastrous consequences. The independence of the courts is vital to maintaining a system of checks and balances, and eroding this independence could lead to a situation where political interests override legal principles. Once such changes are made, reversing them would be difficult, if not impossible.
As the debate over the 26th Amendment unfolds, it’s clear that the stakes are incredibly high. The tension between the government and the judiciary represents more than just a political struggle-it’s a battle over the very foundation of Pakistan’s democracy. Amendments to the Constitution are necessary to adapt to changing times, but they must not come at the expense of judicial independence or democratic integrity.
Before pushing forward with these changes, the government must consider the long-term impacts on the rule of law and the balance of power. The future of Pakistan’s democratic institutions depends on ensuring that political interests don’t undermine the rights and freedoms that the Constitution was designed to protect.
The writer is a freelance columnist.