The 26th Constitutional Amendment makes significant institutional changes in the structure and
functioning of Pakistan’s judicial system, particularly with respect to the Supreme Court and High Courts.
“These changes bring an extraordinary level of political influence over the process of judicial
appointments and the judiciary’s own administration,” said Santiago Canton, ICJ’s Secretary General.
“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 Senate passed the 26th
Constitutional Amendment within hours following its introduction before it in the evening of Sunday 20
October. It was then introduced in the National Assembly, Parliament’s Lower House, where it was
passed early this morning, Monday 21 October. Shorty afterwards, it also received the assent of the
President and was officially published in the Gazette. Draft amendments were kept secret, and there
were no public consultations on the proposals before they were introduced in, and passed by, the
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,” added Canton. “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.” The ICJ is particularly concerned about the
following changes introduced by the 26th Constitutional Amendment since they seriously undermine
the independence of the judiciary by unduly subjecting it to executive and Parliamentary control: The
composition of the Judicial Commission of Pakistan The Judicial Commission of Pakistan (JCP) nominates
judges for the Supreme Court and High Courts for appointment. Before the 26th Constitutional
Amendment, the JCP comprised a majority of judges. However, the amendment has changed the
composition of the JCP to also include two members of the National Assembly, two members of the
Senate and one woman or non-Muslim member, to be nominated by the Speaker of the National
Assembly. The Law Minister, the Attorney General of Pakistan, and a representative of the Bar were
already members of the JCP and remain so. These changes in the JCP’s composition allow for direct
political influence over it, and reduce the JCP’s judicial members to a minority. For the appointment of
Supreme Court judges, for example, only five out of 13 JCP’s members are required to be judges
(namely, the Chief Justice of Pakistan, the most senior judge of the constitutional benches, and the three
most senior Supreme Court judges). Administrative powers of the Judicial Commission of Pakistan In
addition to nominating judges for appointment, the JCP has been given the power to determine and
nominate “constitutional benches” within the Supreme Court and High Courts. These benches shall have
exclusive jurisdiction over matters involving interpretation of the Constitution and enforcement of
fundamental rights. Such power allows the JCP – a body subject to direct political influence in its
decision-making – 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. The 26th Constitutional Amendment has also made similar amendments to
the jurisdiction of High Courts, where matters involving the writ jurisdiction of High Courts have been
transferred to “constitutional benches” nominated by the JCP. The amendments also provide that all
pending petitions, appeals and reviews that relate to matters falling under the jurisdiction of
“constitutional benches” be transferred to them. Appointment of the Chief Justice of Pakistan Prior to
the 26th Constitutional Amendment, the most senior judge of the Supreme Court was appointed the
Chief Justice of Pakistan (CJP).
