The 26th Amendment: A Critical Step For Pakistan’s Future – OpEd
By Alina Fayaz
In recent years, the credibility of Pakistan’s judiciary has faced intense scrutiny, with accusations of political facilitation by former Chief Justices raising concerns about the independence of the judicial system. The Supreme Court “Practice and Procedure Amendments Ordinance-2024” introduces key reforms aimed at enhancing judicial transparency and fairness.
By implementing a “first come, first served” system for case scheduling and allowing the Chief Justice to appoint committee members, the ordinance seeks to decentralize power, eliminate political biases, and ensure accountability through public court transcripts. This article discusses the critical reform that is likely to strengthen the judiciary and promote the justice along with discussion on the multifaceted strategy that should be adopted to minimize the burden.
Despite the foundational role that an impartial judiciary plays in safeguarding democracy, many educated Pakistanis express skepticism about the true autonomy of the courts. With only 17 judges handling approximately 25,000 new cases annually—resulting in a staggering backlog of 52,000 pending cases—it is evident that the judicial infrastructure is under significant strain. The current system, while functional, struggles to deliver timely justice and lacks the specialized expertise required for constitutional matters. This context underscores the urgency of the proposed “26th Amendment” which represents a pivotal opportunity to reform our constitutional framework, restore faith in judicial integrity, and ensure accountability—elements crucial for a vibrant democracy at this critical juncture in Pakistan’s history.
The 26th Amendment aims to address political instability induced by “floor crossing,” a behavior that undermines party allegiance and election integrity. It seeks to enhance governance transparency by modifying Article 63-A to allow for the counting of votes cast by defected members, thus fostering a more stable political environment.
One of the amendment’s most significant proposals is the establishment of the ‘Federal Constitutional Court (FCC),’ which would serve as the ultimate authority for interpreting the Constitution. The FCC will comprise a Chief Justice and judges selected through a thorough process to ensure fair representation from all provinces. By taking initial jurisdiction over constitutional petitions, the FCC is designed to relieve the Supreme Court of some cases, thereby improving efficiency and focusing on specialized constitutional interpretations.
Additionally, the amendment proposes lowering the minimum age for High Court judges, improving accountability through annual performance assessments, and reforming the Supreme Judicial Council’s authority. By prohibiting High Courts from taking suo motu actions, the amendment aims to streamline judicial processes and limit judicial intervention in critical matters without formal petitions.
The Ordinance has important political ramifications as well, especially in light of its goal of depoliticizing the court. Concern over specific judges siding with political parties and influencing important cases with broad political ramifications has grown over time. By guaranteeing that the handling of cases is governed exclusively by the values of justice and fairness, the new Amendments aim to stop this. This will assist in regaining the public’s trust in the judiciary, which has been damaged by accusations of partisanship and political meddling.
The establishment of the FCC must be approached with caution. It should not be used to accommodate retired judges or serve political interests. The success of the FCC will depend on appointing judges of integrity who are committed to upholding constitutional principles, with legal scholars and seasoned practitioners included to enhance credibility.
However, the amendment also includes a provision stating that no constitutional provision or amendment may be challenged in any court, including the FCC. This raises concerns about judicial oversight and accountability, especially given the Supreme Court’s historical role in upholding constitutional norms. To mitigate these concerns there should be continuous assessment of the amendment and its impact on Pakistan’s political and legal landscapes is necessary. Mechanisms for feedback and adjustment should be implemented to ensure that the FCC and the broader constitutional framework evolve to meet the needs of a changing society.
To navigate the complexities introduced by the 26th Amendment, Pakistan must adopt a multifaceted strategy. Public discourse and debate are essential; the implications of the amendment for democratic governance and judicial independence should be openly discussed in legislative and civil society forums to foster a more informed electorate. Transparency throughout the amendment process is crucial for building public trust.
In conclusion, the proposed 26th Amendment represents a significant crossroads in Pakistan’s judicial landscape, offering an opportunity for both reforms and reflections. Questions about judicial independence and accountability are catered by improving judicial efficiency and transparency via the establishment of the FCC and revisions to key constitutional articles. Encouraging public discourse will be essential to ensuring that the ramifications of the amendment are understood and debated. Through inclusive dialogue and a focus on transparency, Pakistan can strengthen public trust in its institutions and fortify its judicial system. Ultimately, the 26th Amendment should serve as a cornerstone of a more robust and responsible democracy, paving the way for a fair and just society for all.
