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Pakistan’s judicial system takes an authoritarian hit

The 26th amendment to Pakistan’s constitution means that the government – which functions at the behest of the military – will be able to rein in any judges who dare assert their independence

By Salman Rafi Sheikh
A guard in a khaki uniform and holding a rifle stands in profile in front of a blue sign with white writing pointing towards
Pakistan’s latest constitutional amendment ensures that the appointment of the chief justice of Pakistan depends on the favour of parliament – and, by default, on that of the executive and the military
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On 20 October, Pakistan prime minister Shehbaz Sharif’s cabinet approved a bill to amend the country’s constitution and immediately sent it to be passed by the Senate – the upper house of Pakistan’s parliament. The Senate convened despite it being a Sunday, and passed the bill with 65 votes in favour and four votes against. The bill was then rushed to the 336-member National Assembly, or lower house, where lawmakers sat through the night to pass it at 5 am the next day. During discussion in parliament over the bill, members of the Pakistan Tehreek-i-Insaf (PTI) – the embattled opposition party led by the imprisoned former prime minister Imran Khan – alleged that members of parliament from their party had been abducted to force them into voting for the legislation. 

The haste and drama that accompanied the passage of the 26th amendment to Pakistan’s constitution are measures of how controversial it is. The amendment has allowed the government to introduce significant judicial reforms that have in effect curtailed the powers of the judiciary, and handed to the executive many of the same powers the judiciary has now lost. In Pakistan, this means that the government, which functions at the behest of the military, will be able to rein in judges if they try to assert their independence. 

Among the reforms brought in by the amendment is a provision that allows a parliamentary commission to select the chief justice of the Supreme Court of Pakistan from among the three most senior judges, for a fixed tenure of three years. Before the amendment, the most senior judge of the Supreme Court automatically qualified to become the chief justice and could remain in that position until retirement at the age of 65. The commission to select the chief justice consists of eight members of the National Assembly and four of the Senate. It has representation from parliamentary parties according to their proportion of seats in the legislature. The commission’s selection will be finalised via a two-thirds majority.

Another key reform is that the suo motu powers of the Supreme Court – that is, its powers to exercise its jurisdiction even in the absence of a petition by any interested party – have been taken away.