Topics: The 26th Constitutional Amendment: Balancing Judicial Independence and Legislative Authority
The judiciary and the legislature are essential institutions in any democratic government, each with distinct roles and responsibilities. An independent judiciary is a cornerstone of constitutional democracies, ensuring the rule of law and the protection of citizens’ rights. However, tensions often arise between judicial independence and legislative control, as each institution seeks to assert its authority within the democratic framework. This tension is particularly pronounced in Pakistan, where the 26th Constitutional Amendment aims to redefine the balance of power between the judiciary and the legislature. This essay critically examines the historical context, the dynamics of judicial independence versus legislative control, and the implications of the 26th Constitutional Amendment in Pakistan.
Historically, Pakistan’s democratic institutions have been marred by an institutional tug of war, with the judiciary and the legislature frequently at odds. The judiciary, tasked with upholding the constitution, has often been accused of overstepping its boundaries to influence the political and legislative processes. Conversely, the legislature has occasionally sought to curb judicial authority, leading to a persistent struggle for dominance. This institutional rivalry has undermined the stability and effectiveness of Pakistan’s democratic system.
A critical analysis of the judiciary’s role in Pakistan reveals a pattern of judicial overreach, where the courts have exerted undue influence over the legislative and executive branches. One of the most contentious aspects of judicial overreach is the validation of undemocratic steps in the political sphere. The infamous “doctrine of necessity,” invoked in cases like the Dosso Case and Ayub Khan’s Martial Law, exemplifies how the judiciary has legitimized unconstitutional actions, eroding democratic norms.
Another manifestation of judicial overreach is the interference in parliamentary processes. For instance, the Supreme Court’s suo moto action against Deputy Speaker Qasim Suri’s ruling during the no-confidence motion case demonstrates the judiciary’s willingness to intervene in legislative matters. Similarly, the frequent use of contempt of court proceedings has been criticized as a tool to stifle dissent and assert judicial supremacy.
The judiciary’s involvement in politics has also led to the over-judicialization of political processes, resulting in the ouster of public officeholders. Notable examples include the disqualification of Prime Minister Yousuf Raza Gilani in 2012 and Prime Minister Nawaz Sharif in 2017. These actions, while rooted in legal arguments, have been viewed by many as politically motivated and detrimental to the democratic process.
Furthermore, judicial overstepping has disrupted the balance of power between institutions. The judiciary’s involvement in initiatives like the collection of dam funds, a task traditionally reserved for the executive, highlights the encroachment of judicial functions into other domains. This encroachment undermines the principle of separation of powers, a fundamental tenet of democracy.
The judiciary’s exemption from accountability is another critical issue. The Supreme Judicial Council, tasked with overseeing judicial conduct, has often been criticized for its ineffectiveness. Cases like that of Justice Mazhar Ali Naqvi underscore the culture of judicial impunity, where judges are rarely held accountable for their actions. This lack of accountability further consolidates judicial power and fosters a sense of unaccountability within the judiciary.
Moreover, the judiciary has misused its power to review laws passed by parliament. The review of the 18th and 21st Amendments, for instance, demonstrates how the judiciary has invoked the “doctrine of basic principles” to challenge parliamentary authority. While judicial review is a critical safeguard against unconstitutional laws, its misuse undermines legislative sovereignty and disrupts the balance of power.
The 26th Constitutional Amendment aims to address these issues by bringing the judiciary under greater legislative control. One of the key proposals is to subject the performance of top courts to legislative-led audits. This measure seeks to enhance transparency and accountability, ensuring that the judiciary operates within its constitutional mandate. Additionally, the introduction of a patronage system aims to create a more collaborative relationship between the judiciary and the legislature.
The amendment also proposes executive influence over the appointment of top judges. By establishing a specialized Constitution Committee and requiring the Prime Minister’s assent, the amendment seeks to make the judicial appointment process more inclusive and representative. This measure aims to prevent the judiciary from becoming an insular institution, disconnected from the broader democratic framework.
Another significant proposal is the division of the Supreme Court’s powers through the creation of constitutional benches and the insertion of Article 191A. This measure seeks to streamline the court’s functions and prevent the concentration of power in a single judicial body. By delineating the court’s jurisdiction, the amendment aims to enhance judicial efficiency and ensure that the judiciary remains focused on its constitutional role.
The amendment also seeks to curtail the judiciary’s power to review laws passed by parliament. This proposal, supported by a report from the International Commission of Jurists, emphasizes the need to respect legislative sovereignty while maintaining judicial oversight within constitutional limits. By limiting the scope of judicial review, the amendment aims to restore the balance of power between the judiciary and the legislature.
The amendment further enhances legislative authority within the judicial commission by giving greater weight to the legislature in judicial appointments. This measure seeks to democratize the appointment process and prevent the concentration of power within the judiciary. Additionally, the amendment proposes politically appointed Chief Justices and Presiding Judges, ensuring that the judiciary reflects the democratic will of the people.
Strengthening the parliamentary committee’s role in judicial accountability is another key aspect of the amendment. By empowering the committee to hold judges accountable, the amendment aims to foster a culture of transparency and responsibility within the judiciary. This measure seeks to address the culture of judicial impunity and ensure that judges are held to the same standards as other public officials.
Finally, the amendment seeks to limit judicial activism by restricting the use of suo moto powers. The frequent invocation of suo moto powers in cases of public importance has often been criticized as judicial overreach. By curbing this practice, the amendment aims to ensure that the judiciary remains focused on its primary role of interpreting and upholding the constitution.
In conclusion, the 26th Constitutional Amendment represents a significant step towards redefining the relationship between the judiciary and the legislature in Pakistan. By addressing the issues of judicial overreach, lack of accountability, and the misuse of judicial review, the amendment seeks to restore the balance of power between these two critical institutions. While the amendment has its critics, it represents an opportunity to strengthen Pakistan’s democratic framework and ensure that the judiciary and the legislature work collaboratively to uphold the constitution and serve the people. Ultimately, the success of the amendment will depend on its implementation and the willingness of all stakeholders to prioritize the nation’s democratic principles over institutional rivalries.
What’s up colleagues, pleasant post and good arguments commented at this place, I
am actually enjoying by these.
Plz upload failures and commitments of COP29
Informative đź‘Ť
Supercalifragilisticexpialidocious as always..the csps academy is really doing a fabulous job and is always upto the mark..this article is really a maser piece
Good work
Plz upload failures and commitments of COP29
We have attempted the related topic in the previous mock, it was 26th amendment and it impacts on democratic future of Pakista.However, this article has fruther elucidiated the changes in constitution and its impacts on the balance of power between judiciary and Legislature.
I shall request for another emerging topic and issue titled ” Emerging Multipolarity and the role of Pakistan.” Thank you
Good and informative article
The judicialisation of political processes vs politicisation of justice—choosing a lesser evil is a conundrum;however, I would still go with the judicialisation of politics as it empowers the weak rather than politicisation of justice that empowers the status quo.
Sir please add Local Government System of Pakistan (province wise) covering history, present scenarios and future prospects.
This is a brilliant and well-researched analysis! You’ve captured the complexities of Pakistan’s 26th Constitutional Amendment with clarity and depth. The insight into the balance of power is truly impressive, but it could explore potential challenges in implementing these reforms more deeply, especially concerning political resistance and institutional conflicts
a balanced analysis
While many experts of legal fraternity consider the 26th Constitutional Amendment as a step towards parliamentary supremacy, others contend that it has deteriorated the very fabric of Constitutional principle of independent of Judiciary. The Latters assume that this constitutional amendment is not inclusive in a sense as the largest political party in parliament has not voted in its favor. Moreover, they believe that the amendment would not survive for a long period of time as it lacks agreement of all the political parties present in the current Parliament. The Prominent Legal pundits, for instance, quote the examples of 8th,13th and 17th constitutional amendments which survived for a short period of time due to lack of political support. Meanwhile, they also cite the example of 18th constitutional amendment which is considered as the backbone of 1973 constitution because it has highly inclusive document.Thus, the 26th constitutional amendment is not for strengthening the legislative powers rather it is an act to control the power of judiciary, especially, of Higher Courts.
“I found this article to be both informative and engaging. It provides a thorough analysis of the current 26th amendment while maintaining a captivating tone that keeps the reader interested”
Sir please write on middle east situation and it’s impacts on south Asia
Balochistan insurgency please
Insurgencies in Pakistan
There are two sides of any action, one apperant, and one hidden. If the parliament has passed it out of goodwill in both senses ,apparent and hidden, then it is going to create a difference. If there motive, however, is to subjugate judiciary to their evil-doings, then this is not going to help it, rather it will backlash against them. Anyway, the judiciary is the custodian of the constitution, and in this pretext, it needs to work for upholding the fundamental rights, which is post 26 amendment not going to happen. This will make the parliament an all-powerful institution, not at par with the other two combined…
The 26th Constitutional Amendment is a critical discussion topic, especially in balancing the roles of judiciary and legislature in democratic governance. The article effectively highlights the essence of maintaining a harmonious relationship between these pillars of the state. It would be beneficial if future discussions could also explore comparative constitutional practices in other democracies and their implications for Pakistan.
Topic Suggestions for Presentations:
1. The Evolution of Judicial Independence in Pakistan
2. Legislative Authority vs. Executive Overreach: A Comparative Perspective
3. Impact of Constitutional Amendments on Fundamental Rights
4. Role of Judiciary in Strengthening Democracy in Pakistan
5. Separation of Powers: Theory vs. Practice in Pakistan
Sir g kindly add new topics like Syrian and Afghan issue in headings format.
Sir g kindly add new topics like Syrian and Afghan issue in headings format
Treasure
Key discussions are lacking in several areas, including the independence of the judiciary, which is a salient feature of the constitution (as highlighted in the case of District Pindi Bar Association vs. Federal of Pakistan). Additionally, a comparative analysis of India’s “Basic Structure Doctrine” (from the Kesavananda Bharati case) versus Pakistan’s Salient Features of the Constitution is necessary. Furthermore, there should be an examination of the constitutional framework regarding the separation of powers
Noted and will be incorporated.
Very informative