The Constitution (Twenty-sixth Amend-ment) Act, 2024 [26th Amendment], passed in utmost haste by the Parliament on October 21, 2024 receiving the assent of President of Pakistan on the same day, claims to bring “much-needed reforms in country’s legal framework, enhancing judicial transparency, and promoting the welfare of its citizens”, is being severely criticized by proponents of an independent judiciary.
The 26th Amendment has introduced several provisions that purport to fix the judicial system, ensuring it operates within democratic principles, reinforcing the integrity of Pakistan’s state institutions.
One of the most noteworthy aspects of the 26th Amendment is the inclusion of Article 9A, which enshrines the right to a clean and healthy environment as a constitutional guarantee.
This addition reflects Pakistan’s commitment to global environmental standards and acknowledges the importance of safeguarding natural resources for future generations. By embedding this right within the 1973 Constitution, the government has set a praiseworthy precedent for prioritizing environmental protection, ensuring that future policies align with the nation’s duty to provide a healthy environment for all.
The 26th Amendment has devised a new procedure of judicial appointments by amending Article 175A of the Constitution—changing the composition of Judicial Commission of Pakistan by including members of Parliament having majority in any decision making process.
By allowing both government and opposition members to have a voice in this process, the amendment ensures that parliament has supremacy over judiciary that earlier had absolute say in selection process of judges of higher judiciary. This inclusion, one hopes, will bring transparency and accountability, making the judicial system more representative and reducing chances of bias or undue influence.
Another significant aspect of the 26th Amendment is the introduction of new guidelines regarding the appointment of the Chief Justice of Pakistan (CJP). Under the revised framework, instead of the senior-most judge automatically assuming the role, a parliamentary committee will select one of three nominees.
This change aims at strengthening reliability of the appointment process by allowing a broader range of candidates to be considered for this crucial position. The main idea behind this change is to avoid sole reliance on seniority, ignoring merit, experience, etc. and selecting the individual best-suited for the highest judicial position.
Subsequent to the approval of 26th Amendment, Justice Yahya Afridi was nominated as Pakistan’s next CJP on October 22, 2024 and notified by President the next day —creating hope for stability at a critical time for the nation. With his extensive experience, demonstrated commitment to upholding rule of law, an unblemished legal career, praised by all for his integrity, fairness, and unshakable dedication to the principles enshrined in the Constitution, makes Justice Yahya Afridi an ideal candidate to lead the judiciary.
As the newly appointed CJP, Afridi carries the important responsibility of addressing some of the key challenges facing Pakistan’s judiciary. One of his foremost tasks would be to ensure the effective enforcement of the 26th Amendment.
This includes overseeing the reformed judicial appointment process, ensuring that it functions in a transparent and accountable manner, and upholding the principles of merit and integrity in judicial appointments. His leadership in this area will be critical in enhancing public trust in the judiciary and independent operation of the courts, without political interference.
Another essential task for Justice Afridi would be addressing the significant backlog of cases that have long plagued the country’s courts.
By introducing structural reforms like constitutional benches and streamlining judicial processes, Justice Afridi can make organized efforts to clear the backlog and to see that litigants receive timely justice. His commitment to upholding efficiency within the judiciary will be key to reducing the long-standing issue of delayed justice, which has often eroded public confidence in the legal system.
The 26th Amendment also introduces a more structured approach to judicial performance evaluations, ensuring accountability and continuous improvement within the judiciary. With these reforms, the underperforming judges will be given the opportunity to enhance their work before any disciplinary measures are considered.
As CJP, Justice Afridi can play a vital role in implementing these performance evaluations and ensuring that the judiciary maintains high standards of professionalism and dedication to the law. This will contribute to a more efficient and respected judicial system, with judges held to clear and consistent standards.
The 26th Amendment further emphasizes judicial restraint, particularly with respect to the exercise of Suo Motu powers. Introduction of a three-member judicial committee to approve such notices promotes the idea that the judiciary must act collectively and thoughtfully when intervening in political or administrative matters.
Justice Afridi’s leadership will be crucial in ensuring that these powers are used judiciously, maintaining the balance between judicial intervention and respect for separation of powers. His three-year tenure will likely see the judiciary exercise greater care in its decisions, and in protecting the country’s democratic structure.
The new CJP will also have an important role to play in making Pakistan’s judiciary a model for efficiency and transparency, regardless of regional disparities. With the 26th Amendment introducing provisions for case transfers between high courts, Justice Afridi’s oversight would enable this mechanism to operate smoothly and fairly.
This would guarantee that cases are heard in a timely manner, and that justice is accessible to all citizens.
Beyond these immediate responsibilities, Justice Afridi’s appointment comes at a critical juncture in Pakistan’s judicial history. With the nation passing through legal and political transformations, the judiciary will be instrumental in ensuring that these changes are implemented smoothly.
The 26th Amendment’s focus on timely justice, accountability, and judicial independence aligns perfectly with Justice Afridi’s career-long dedication to these principles. His track record as a fair and principled judge suggests that he will approach his new role with the urgency and diligence that the office demands. The introduction of constitutional rights such as the right to a clean environment, coupled with reforms in the judicial appointment process and case management, provides the judiciary with a more robust framework for delivering justice. Justice Afridi’s tenure is expected to strengthen these reforms in the years to come.
Criticism aside of interference in independence of judiciary that has much weight to the extent of appointing constitutional benches from outside, by amending the Constitution, Pakistan’s legislature has made an effort to enhance transparency, accountability, and fairness in higher judiciary.
Inclusion of key provisions aimed at improving judicial efficiency and promoting environmental protection reflects the amendment’s comprehensive nature and its alignment with the country’s broader goals of social and legal progress.
However, only time will tell whether 26th Amendment proves to be beneficial for masses and democratization of institutions or is set to serve those who allegedly trigged it as they want no resistance from any quarters to their absolute control over the entire state apparatus—the legislators, no matter affiliated with which party, are always willing to oblige without any hesitation!
Copyright Business Recorder, 2024
The writer is a lawyer and author of many books, and Adjunct Faculty at Lahore University of management Sciences (LUMS), member of Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE). She can be reached at [email protected]
The writer is a lawyer and author of many books, and Adjunct Faculty at Lahore University of management Sciences (LUMS) as well as member of Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE). He can be reached at [email protected]
The writer is a US-based corporate lawyer, and specialises in white collar crimes and sanctions compliance. He has written several books on corporate and taxation laws of Pakistan. He can be reached at [email protected]
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