After months of heated political negotiations and back-and-forth, Pakistan has finally passed the 26th Constitutional Amendment Bill on Monday morning. This bill, which proposes a significant overhaul of the country’s judiciary, has received approval from both houses of the Pakistani parliament, sparking intense debate about its implications for the country’s legal system.
The Bill’s journey through parliament was far from straightforward. It first received the green light from the Senate with a two-thirds majority, but its passage through the National Assembly was a late-night affair, starting at 11:36 pm (local time) and stretching well past midnight before finally passing at 5 am. The approval of both houses sends the Constitution (Twenty-Sixth Amendment) Act, 2024 to the President for his assent, as stipulated by Article 75 of Pakistan’s constitution.
The Bill faced a contentious vote, requiring a minimum of 224 votes in the National Assembly to pass. In the end, the motion passed with 225 votes in favor, while 12 members from the PTI and the Sunni-Ittehad Council (SIC) opposed it. Notably, former Prime Minister Imran Khan’s PTI staged a walkout when the first clause of the bill was read in the parliament. This highlights the significant division and opposition the bill has faced from certain political factions.
While the Bill has passed, its potential impact on the country’s judiciary and its ability to uphold the rule of law is a cause for concern for many. Here’s a breakdown of the key amendments that have raised eyebrows and fueled controversy:
Limiting the Chief Justice’s Term and Appointment Process:
One of the most significant changes introduced by the Act is the limitation of the Chief Justice of Pakistan’s (CJP) term to three years. Previously, the CJP could remain in office until the age of 65. Now, under the new Act, the CJP’s term “shall be three years or unless he sooner resigns or attains the age of 65 years or is removed from his office in accordance with the Constitution, whichever is earlier”.
This amendment also changes the process of appointing the CJP. Instead of the president automatically appointing the most senior judge of the Supreme Court, the top judge will now be “appointed on the recommendation of the Special Parliamentary Committee from amongst the three most senior” SC judges. This committee will present its recommendations to the Prime Minister, who will then approach the president for the final appointment. Critics argue that this change introduces a layer of political influence into the process, potentially compromising the CJP’s independence.
Curtailing the Supreme Court’s Suo Moto Powers:
The Act also makes significant changes to Article 148 of the Pakistani constitution, effectively curtailing the Supreme Court’s suo moto powers. The amendment states that “the Supreme Court shall not make an order or give direction or make a declaration on its own or in the nature of suo motu exercise of jurisdiction beyond the contents of any application filed under this clause.”
This change, particularly contentious, prevents the Supreme Court from taking immediate action on issues that may violate fundamental rights, potentially limiting its ability to act as a check on the government’s power. While supporters argue that it limits the Court’s ability to overstep its mandate, critics see it as a deliberate attempt to weaken the judiciary’s independence.
Beyond Judicial Reform: The Eradication of ‘Riba’ (Interest)
The 26th Amendment Bill also introduces an interesting and far-reaching amendment that aims to eradicate all forms of “riba” or interest by January 1, 2028. This move is intended to promote Islamic banking and financial practices within Pakistan. The bill states that “In the Constitution, in Article 38, for paragraph (f), the following shall be substituted, namely: (f) eliminate riba completely before the first day of January, two thousand twenty-eight.”
This amendment is significant because it reflects a growing desire within Pakistan to move towards a more Islamic-compliant financial system. It remains to be seen how this will impact the country’s financial sector and whether it will be possible to completely eliminate interest within the timeframe set by the Act.
The passing of the 26th Constitutional Amendment Bill has sent shockwaves across Pakistan, raising significant questions about the future of the country’s judiciary and the balance of power. While supporters hail it as a much-needed reform to address perceived issues with the judiciary, critics argue it will ultimately undermine the court’s independence and potentially create a more politically-driven system. The true impact of these amendments will only become clear in the years to come.