Redefining Power in Pakistan

In a significant legislative shift, Pakistan’s Parliament has enacted the 26th constitutional amendment,
fundamentally altering the relationship between the government and the judiciary. This amendment,
which enhances parliamentary authority in judicial appointments while curtailing the powers of the
Supreme Court’s chief justice, raises critical questions about judicial independence, political stability,
and the future of governance in Pakistan.
At the heart of this amendment lies the contentious removal of the Supreme Court’s suo motu powers,
which previously allowed justices to initiate proceedings on issues of public interest without formal
petitions. By restricting this authority, lawmakers aim to prevent judicial overreach and curb
perceptions of bias in the judiciary, especially amidst a political climate fraught with tension. Critics,
however, argue that this move serves more as a preemptive strike against a judiciary perceived to favor
the opposition, particularly the Pakistan Tehreek-e-Insaf (PTI) party led by Imran Khan.
The new framework also establishes a fixed three-year term for the chief justice, with the prime minister
empowered to appoint the chief justice from among the top three senior judges. Justice Yahya Afridi’s
recent appointment underscores the amendment’s immediate impact, following the retirement of former
Chief Justice Qazi Faiz Isa. The implications of this new arrangement are profound, with the
government potentially insulated from judicial challenges that could disrupt its agenda.
This legislative push appears largely motivated by concerns over Justice Mansoor Ali Shah, viewed as a
potential chief justice sympathetic to the PTI. His judicial history, marked by rulings that favored the
PTI without formal petitions, raised alarm within the current government. As fears mounted that Shah’s
ascension would lead to a resurgence of judicial scrutiny over the government’s actions, the urgency for
reform became apparent.
Historically, Pakistan’s political landscape has witnessed a tug-of-war between the judiciary and the
government. Since the adoption of the 1973 constitution, numerous amendments have sought to
delineate the boundaries of judicial authority, often in response to the perceived politicization of the
courts. This trend highlights the fragility of judicial independence in Pakistan, where past chief justices
have strayed from their core judicial responsibilities, engaging instead in political projects that have
drawn widespread criticism.
The 26th amendment’s passage also reflects a broader consensus among major political entities, with
key players like Maulana Fazlur Rehman of Jamiat Ulema-i-Islam-Fazl facilitating dialogue between

the government and opposition. While the PTI has expressed reservations, particularly regarding
military jurisdiction over civilians and the establishment of a Federal Constitutional Court, their
ultimate decision to boycott the voting process suggests a complicated calculus of political survival.
Notably, Justice Yahya Afridi’s appointment has not met outright opposition from any party, indicating
a level of respect for his balanced judicial record. This could allow the PTI to navigate the new
landscape with some semblance of pragmatism, albeit with diminished leverage in seeking judicial
favors.
As Pakistan embarks on this new constitutional journey, the ramifications of the 26th amendment
extend beyond mere governance; they evoke profound questions about the integrity of democratic
institutions. While the amendment may offer a temporary reprieve from judicial interventions, it
simultaneously risks entrenching a perception of parliamentary dominance that could undermine the
very principles of checks and balances essential to a functioning democracy.
Ultimately, Pakistan stands at a crossroads. The current political maneuvering, though seemingly
designed to stabilize governance, reveals the ongoing struggle for power and influence among its
political factions. As the nation grapples with these constitutional changes, it must remain vigilant in
safeguarding the independence of its judiciary—an institution vital to upholding the rule of law and
protecting the rights of all citizens. The path forward will require a commitment to balance and restraint,
ensuring that neither the government nor the judiciary oversteps its bounds in a rapidly evolving
political landscape.