The recently-passed 26th amendment to the Constitution of Pakistan, under which the Supreme Court’s chief justice will now be selected by a parliamentary committee and have a fixed term of three years, suffers from a crisis of legitimacy.
When the legislature does not accurately represent the will of the people, when laws benefit only the powerful, and when brute force replaces public debate, no law—regardless of its substance—will be seen as legitimate. Lifetimes will be spent defending every sentence.
Parliamentary democracy is about more than simply erecting polling booths every few years. It’s a system premised on the role of public participation in government affairs. And elected representatives have a moral duty to do everything to enable this ideal. The 26th amendment’s crisis of legitimacy exists because it was conceived by discarding the principles of freedom of speech, information, transparency, and due process.
Consider the current composition of Pakistan’s Parliament. The 2024 general elections delivered a government whose representatives scatter the moment anyone utters the word “Form 45.” The Pakistan Tehreek-e-Insaf (PTI), forced to contest the election stripped of a unified electoral symbol, continues to be denied its share of reserved seats despite a Supreme Court ruling in its favour. To top it all off, the Senate elections for one province, Khyber Pakhtunkhwa, have yet to be held.
This is the Parliament that sought to tinker with the Constitution. Legitimacy never really stood a chance.
The legitimacy problem is compounded by the process that was adopted to pass the 26th amendment. Barring a small round of stump speeches by Pakistan People’s Party (PPP) Chairman Bilawal Bhutto-Zardari on the virtues of a constitutional court, no public draft of the amendment was ever shared, and no public deliberations were held. Clothed in secrecy, the people were deemed superfluous.
When it was finally presented in Parliament, no one could say for certain what its contents were. The public saw no draft, but saw visuals of politicians who until recently had been “missing” suddenly appear to cast their vote for an amendment that nobody had yet seen.
“These are my senators,” wrote an exasperated Sardar Akhtar Mengal on social media. “Where are they coming from? Look at their condition.” Shortly following these scenes, members of the ruling coalition gave grand speeches on the sanctity of Parliament. Akhtar Mengal subsequently had a terrorism case filed against him.
In the end, the 26th amendment was passed in the early hours of the morning after a marathon legislative session. According to Pakistan Institute of Legislative Development and Transparency (PILDAT), the National Assembly approved it in five hours. The Senate passed it in three. Everything, it seems, had to be done as soon as possible, lest the weight of conscience, or the retirement date for the Chief Justice of Pakistan, prove too much to bear.
What is tragic is that those who brute forced this amendment knew exactly what they were doing. In a previous era, the same ruling parties had passed the 18th amendment. According to PILDAT, it was passed after a Parliamentary Committee on constitutional reform held 77 meetings over 10 months and spent 385 hours in deliberations. 982 public proposals were reviewed.
The 26th amendment holds little democratic legitimacy because it is marred by allegations of coercion and a lack of transparency. A precedent has been set in which Parliament functions as a rubber stamp rather than a forum for democratic norms. For all the claims about its sovereignty, the institution of Parliament has been severely undermined.
This brings us to the substance of the amendment. A substance that cannot escape the cost and circumstances through which it came about.
There is no debate that Pakistan’s judiciary requires serious reform. Successive periods of judicial activism have left Pakistan’s democracy and the separation of powers in shreds. A massive backlog of cases has made the pursuit of justice elusive. But the solution to these problems is not to create a compromised judiciary unable to perform one of its core constitutional duties: accountability of the government.
“The 26th amendment holds little democratic legitimacy because it is marred by allegations of coercion and a lack of transparency. It was conceived by discarding the principles of freedom of speech, transparency, and due process.”
The government’s first target was to restructure the Judicial Commission of Pakistan (JCP), the body responsible for appointing judges. It did so by reducing the “judicial” part of the commission to a minority. The incumbent government now enjoys a comfortable majority in appointing judges to the Supreme Court. The intent behind this change became clear when the government passed a recent law to increase the number of judges in the top court.
There have been genuine calls to reform the JCP to allow for more stakeholders outside the judiciary to have a say in the appointment process. These proposals have called for greater transparency, objective criteria, and enhanced diversity in an effort to create balance between judicial independence and public accountability. Yet, the 26th amendment’s solution, devoid of objective criteria and balanced membership, simply gives today’s ruling government an uninhibited say over who gets to be a judge.
Any law or constitutional scheme operates within a context and is developed according to that context. This is why references to how judicial appointments work in other jurisdictions can sometimes be unhelpful. While it may be true that there are certain jurisdictions where politicians have a say in judicial appointments, it is also true that many of these jurisdictions do not have a history of executive meddling in judicial affairs. In a state with a deep civil-military imbalance, giving the executive leverage over judicial appointments compromises the legitimacy of the judicial institution.
Another innovation the 26th amendment introduced is to empower this compromised JCP to appoint constitutional benches within the Supreme Court. This court within a court would hear all constitutional matters. This was done in the name of reducing the backlog of cases before the Supreme Court. But it is a red herring. The number of constitutional cases before the Supreme Court is actually miniscule. The vast majority of cases clogging up the judicial system are before the trial courts and High Courts. Even otherwise, transferring cases from one department of the Supreme Court to another is no substitute for the deep structural reform that is necessary throughout the court system if pendency of cases is to be improved.
Perhaps if the government had left the composition and workings of this new bench to the Supreme Court, there would have been little objection. But the majority in the JCP will decide who sits on these benches, reserving for itself the power to exclude judges who it deems may go against its interest.
Constitutional cases, by definition, are cases against the government. A party to a case should not be allowed to choose its own judges. Especially if those judges owe their new appointments to them. In these circumstances, how much legitimacy would these constitutional benches have in the eyes of ordinary people?
Finally, a special parliamentary committee that proportionately represents all parties in parliament decides who becomes the Chief Justice of Pakistan from a panel of the three most senior judges of the Supreme Court. On the face of it, this seems like a fair proposal. But the process can only be fair if there is a clear criteria for selection based on merit rather than politics. In the absence of this, it is a mechanism to ensure the triumph of subservience over competence. Every few years, judicial politics will peak as judges audition to demonstrate that they will keep the government’s interest at the forefront in their decisions.
In an effort to make judges less political, politicians have granted themselves the ability to appoint judges, select who hears constitutional cases, and pick the Chief Justice.
This amendment was never about creating a more responsive and accountable judiciary, but one that could be more easily managed by a hybrid regime that is insecure about its own future. Divested of pretence, it must be called for what it truly is: an instrument of guarantee. In order to guarantee that a government with a shaky mandate continues to rule, both Parliament and the judiciary have been weakened.
It is important to note that all this isn’t being done during an era of unchecked judicial activism. Instead, the catalyst was a decision where the judiciary pushed back against an unlawful attempt to deprive a political party of its share of reserved seats. The author of that verdict was prevented from becoming Chief Justice and excluded from constitutional cases. And the dissenting judge, who argued that compliance with Supreme Court verdicts was optional, ending up becoming the head of the constitutional bench.
The writer is a lawyer and former member of the visiting faculty at the Lahore University of Management Sciences. He did his LL.M. from New York University where he was a Hauser Global Scholar. He is currently based in Singapore.
