Redefining the judiciary via constitutional amendments

One of the most contentious aspects of 26th Amendment is its overhaul of judicial appointment process

On October 21, 2024, the parliament swiftly passed the 26th Constitutional Amendment, to be endorsed by the President the same day. Touted as a breakthrough reform to increase judicial transparency and promote citizens' welfare, the amendment has stirred vigorous debate, especially among advocates for judicial independence.

This sweeping constitutional amendment introduces an array of changes intended to recalibrate Pakistan's judicial framework. Amongst provisions concerning judicial overhauling, a landmark provision is the insertion of Article 9A into the Constitution which enshrines the right to a clean and healthy environment as a constitutional guarantee. By embedding environmental protection within the country's legal structure, Pakistan joins a growing list of nations recognising environmental rights as fundamental. This measure reflects the government's commitment to global sustainability goals in light of Pakistan's commitment to the United Nations Framework Convention on Climate Change, which marks a significant step toward ensuring future generations' access to natural resources and a pollution-free environment.

One of the most contentious aspects of the 26th Amendment is its overhaul of the judicial appointment process. Modifying Article 175A, the amendment revises the Judicial Commission of Pakistan by including members of Parliament in critical decision-making roles, including appointments to the higher judiciary. This restructuring grants both government and opposition representatives a formal voice in the selection of judges, which could be a potential encroachment on judicial autonomy.

Another major development under the amendment is the revision of criteria for appointing the Chief Justice of Pakistan (CJP). Moving away from a traditional reliance on seniority, the amended process allows a parliamentary committee to select the CJP from a shortlist of three nominees. It is challenging to discern the intent behind this amendment that may ensure that merit, expertise and experience are prioritised over tenure, which proponents believe will help identify the most qualified candidates for the judiciary's top post. Additionally, this amendment has curtailed the judiciary's suo motu powers, often used to initiate cases in the public interest. By requiring a three-member judicial committee to authorise such actions, the judiciary has been impeded from rendering justice by not interfering in political and administrative matters of the government. It is uplifting to observe that judicial accountability and performance evaluations are now a part of the judicial landscape through the latest amendment. This measure aims to elevate standards within the judiciary, giving judges the opportunity to improve their performance while ensuring transparency and accountability.

Justice Yahya Afridi, who has been sworn in as CJP, is faced with one of the judiciary's most chronic issues - a significant backlog of cases. With the new amendment providing structural reforms like constitutional benches and streamlined case handling, there is hope that the judicial process may become more efficient.

The 26th amendment comes at a transformative moment in Pakistan's judicial history. While critics caution that it risks compromising judicial independence by giving the parliament influence over judicial appointments, proponents argue that the changes align with broader democratic and institutional objectives. Purporters of the amendment believe that enhancing transparency, accountability and inclusivity within the judiciary will strengthen the rule of law in the country.

As Pakistan embarks on this significant judicial reform journey, only time will reveal whether the 26th amendment succeeds in advancing democratic principles and serving the public interest or whether it will consolidate power within a select few. Regardless of the outcome, this momentous change underscores the evolving role of judiciary within a rapidly changing political landscape, making it a crucial case study for legal scholars and reformers worldwide.