ISLAMABAD: The International Commission of Jurists (ICJ) derided Monday’s passage of the 26th Constitutional Amendment into law following the approval of both houses of parliament as a “blow to judicial independence”.
Pakistani politics saw a second “working weekend” in as many months, where the ruling coalition finally succeeded in passing the much-touted ‘Constitutional Package’ with a two-thirds majority in both the Senate and the National Assembly.
The 26th Amendment brings changes to the Constitution, most of which pertain to the judiciary. Some main reforms include taking away the Supreme Court’s suo motu powers, setting the chief justice of Pakistan’s (CJP) term at three years, and empowering the prime minister to appoint the next CJP from among the three most senior SC judges.
On Sunday, the bill, which had 22 clauses, was greenlit by the Senate with a two-thirds majority. Then, during a session that began late on Sunday night and continued past 5am on Monday, the NA also passed it with a two-thirds majority. The NA-approved version had 27 clauses after incorporating suggestions made by the Senate.
Following the conclusion of parliamentary procedures, Prime Minister Shehbaz Sharif, according to Radio Pakistan, sent his advice to President Zardari for his assent on the newly enacted law — titled ‘The Constitution (26th Amendment) Act, 2024’.
An NA secretariat notification published in the Gazette read that the Act with 27 clauses “received the assent of the President on the 21st October, 2024”.
In a statement shared on its X account, state broadcaster PTV News said: “According to the Constitutional Amendment, the new chief justice will be appointed by the parliamentary committee”.
“The federal government has decided to constitute the parliamentary committee to appoint the chief justice,” it added.
Under the Amendment, the country’s top judge will now be “appointed on the recommendation of the Special Parliamentary Committee from amongst the three most senior” Supreme Court judges.
Reacting to the development, the ICJ said the amendment was “a blow to judicial independence, the rule of law, and human rights protection”.
In a statement issued on Monday, ICJ Secretary General Santiago Canton said the changes brought an “extraordinary level of political influence over the process of judicial appointments and the judiciary’s own administration.
“They erode the judiciary’s capacity to independently and effectively function as a check against excesses by other branches of the State and protect human rights.”
The ICJ criticised the swiftness with which the bill became an act, saying that draft amendments were kept secret, and there were no public consultations on the proposals before they were introduced in and passed by parliament.
“It is alarming a Constitutional Amendment of great significance and public interest was passed in such a secretive manner and in less than 24 hours.
“The core principle of the rule of law and the separation of powers according to which citizens and their freely chosen representatives have the right to participate in the legislative process culminating in the adoption and enactment of laws was flagrantly violated in this case,” Canton said.
The ICJ pointed out that the changes in the amendment “seriously undermine the independence of the judiciary by unduly subjecting it to executive and parliamentary control”.
Assailing the changes to the Judicial Commission of Pakistan’s (JCP) composition, the ICJ said they would “allow for direct political influence over it and reduce the JCP’s judicial members to a minority”.
It said that giving the JCP the power to make constitutional benches would allow the body to create “tailored-made judicial benches to hear specific cases”, including cases of political significance. “As a result, there is serious concern that these JCP-appointed benches will not be independent and impartial,” it added.
Regarding the changes to the process for the chief justice of Pakistan’s appointment, the ICJ said the amendment provided no grounds or criteria on the basis of which a special parliamentary committee will nominate the top judge.
It also criticised changes pertaining to the removal of inefficient judges, saying that the amendment neither defined inefficiency nor did it establish a threshold or criteria for inefficiency.
“The ICJ understands that some reforms to the existing judicial system may have been needed to make the courts more efficient and accountable, and the judicial appointment process more transparent and inclusive.
“But these amendments are an attempt to subjugate the judiciary and bring it under the control of the executive, betraying fundamental principles of the rule of law, separation of powers and the independence of the judiciary,” Canton concluded.
