26th amendment | Analysis | Security Lense | 27-Oct-2024
On 21st October 2024, our parliament passed the 26th amendment to the constitution of Pakistan. The views of nation are mixed regarding the passing of amendment, some of them are of the view that such an amendment was needed for supremacy of parliament whereas the others think that the parliament formed after the general elections had not the authority to pass such an amendment because their own legitimacy is under question.
Before going into the details of the amendment, we should know that our country is democratic country and all the laws are passed by the parliament of the country, In order to pass amendments to the constitution, the government or opposition whosoever presents that amendment requires 2/3rd majority of both the houses and later the assent of the president.
The said amendment which is 26th amendment to the constitution of Pakistan had the aim of reforms of judiciary by limiting the judges to the books even more and limiting their roles when it comes to powers of the Supreme Court. Our country has three institutions that are legislation, executive and judiciary that work together in order to work as collective and each has some powers that act as checks on the other institution. In this way all the institutes remain in their domain and let the other organ work in accordance and circumstances.
In the recent past, the judiciary was somehow acting as a tool to remove the democratically elected governments and thus this is how the advocates of parliament supremacy consider it as attack on the parliament by supremacy. The disqualifications of prime ministers like Yousaf Raza Gillani and Nawaz Sharif are examples of it. The advocates of parliament supremacy say that how can judiciary of 17 judges remove a person elected by the population of Pakistan. How can they remove an elected prime minister on what they say as some absurd reasons for removal, but again, the constitution provided them that role and they were not going out the books?
Keeping in view all these situations in mind and how the role of like judiciary and dislike judiciary was increasing in political scenario of Pakistan. The parliament felt of the need to kind of change the constitution, the process itself requires huge debates and consensus of the house, which was seemingly impossible until the dawn of the 20th October when Senate which is the upper house of parliament passed the bill through 2/3rd majority. Critics argue that the majority through which the government benches were able to pass the amendment was brute majority and it requires scrutiny but in democracy in the end it is the number game that matters and so in the case of this amendment.
Almost 22 points were added in the amendment of 21st October 2024. Most important of them was the criteria set for selection of the judges of high courts and Supreme Court of Pakistan. Before the 26th amendment there was a supreme judicial council that appointed the chief on the basis of seniority criteria but now the criteria was that a parliamentary committee consisting of 12 members of the parliament, that include 4 senators and 8 members from national assembly, would now be selecting the chief justice of Pakistan. The committee will of supreme judicial council was added with those 12 members of the parliament.
The main aim of those who were proponents of the 26th amendment was that they had the idea that everything is beyond parliament and parliament is supreme and so to achieve that now we have selection panel including the members of parliament in the Supreme judicial council.
The opponents however are of the view that the amendment is mala fide as they brought in at a time when the current chief was facing a severe backlash for his decisions before the general elections and thus had created a rift between senior judges and resulted in the division of Supreme Court.
The rift increased even more when the judges started giving their dissenting notes and started giving advisory notes in its official capacity. Thus opponents are of the view that the main aim was to manipulate the newly upcoming judge of the Supreme Court of Pakistan.
In my view as a student of law, the 26th amendment was totally an interference of how the judiciary works and the way their operations are carried on, no matter it is the sole right of parliament to pass whatever laws in the country unless they are ultra vires the constitution.
They parliament should not have added fuel to fire by giving the amendment at such a rough time when the senior most judge was almost about to be notified for the chair of the chief of Supreme Court. Rightly so that there is no time for the amendments to the constitution but at the time when in just six days the current chief was about to retire, such an amendment raises serious concerns, all the legal fraternity is united that this amendment is somehow intervention of parliament in the judiciary that is a completely independent organ of the government.
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