The 26th Amendment Bill Draft: A Threat to Judicial Independence and Democracy

A draft of the 26th Constitution Amendment Bill is currently being circulated. If this is truly what the government is considering, it raises serious concerns. This article aims to highlight the dangers of this bill and urge the few remaining undecided parliamentarians to recognize its implications. Only eight or 10 votes are needed to stop this from becoming a reality, and those in power must understand their duty to the country and their oath as parliamentarians. This isn’t just a bill for lawyers, judges, and politicians to debate over—it’s something that should concern every Pakistani.

Why? Because this bill could impact the rights of every citizen and the very fabric of how justice is served in the country.

What’s at Stake?

For months, there were whispers about changes that might extend the retirement age of judges or increase the number of Supreme Court (SC) judges. However, what has emerged is far worse. This amendment proposes sweeping reforms that could undermine the independence of the judiciary and give the government unchecked power over constitutional matters.

Here’s a simplified breakdown of what this bill aims to do:

1. Creation of a Constitutional Court: Instead of the Supreme Court handling constitutional cases, a new Constitutional Court would be established. The president will appoint its chief justice based solely on the prime minister's advice. Essentially, the ruling party would control who gets to interpret the Constitution.
2. Removal of Judicial Oversight: Courts (both Constitutional and Supreme Court) will no longer be able to review actions taken under national security laws. This means officials acting under these laws could be immune from legal scrutiny.
3. Case Transfers Without Consent: Judges or cases can be transferred between courts without their consent, making it easier for the government to manipulate judicial outcomes by moving cases to courts more favorable to their interests.

What This Means for You:

The judiciary feels distant for most people — something only lawyers and politicians care about. But consider this: the judiciary is the last line of defense between the government and your rights as a citizen. If the government controls the courts, your ability to challenge unlawful actions, fight corruption, or protect your constitutional rights diminishes significantly.

Think about your daily life. If a government authority wrongfully fines you, seizes your property, or doesn’t grant you a promotion you deserve, you can go to court to challenge that. Under this amendment, your chances of getting a fair hearing could be jeopardized. Your case would be heard in a court that is hand-picked by the government, with little chance of impartiality.

Even routine cases like tax disputes, planning permissions, or issues with government services would go before this new court. A judiciary controlled by the government is a judiciary that serves the government, not the people.

Breaking Down the Bill:

The 26th Amendment does more than just shift around a few judicial powers — it rewrites the rules of how Pakistan's justice system works. Key aspects include:

1. Abolishing the Supreme Court’s Jurisdiction: The SC would lose its power to hear important constitutional cases, with all such matters going to the new Constitutional Court. The SC’s role would be reduced to hearing only non-constitutional cases.
2. No Accountability for "National Security" Actions: Any actions by the government under the pretext of national security would be shielded from judicial review. Essentially, the government would be free to act without fear of legal consequences in these areas.
3. Undermining High Courts: High court judges who disagree with the government could be transferred without their consent, and high court cases could be moved at the government’s discretion, making it easier to manipulate the outcome of important cases.

The Bigger Picture: A Threat to Democracy:

Democracies thrive on a balance of power. In Pakistan, that balance comes from the separation of powers between the executive (the government), the legislature (the Parliament), and the judiciary (the courts). The judiciary exists to make sure the government doesn’t overstep its bounds and infringe on your rights.

The proposed 26th Amendment disturbs this balance by handing excessive power to the executive. It allows the government to appoint judges who are more likely to rule in their favor, potentially silencing any opposition to its policies, even when those policies might be harmful to the public.

What You Can Do:

This isn’t just a concern for lawyers or politicians; it’s something every citizen should care about. Pakistan’s Constitution was designed to protect you from government overreach, to ensure your rights are safeguarded, and to provide checks and balances. This amendment chips away at those protections.

Awareness is the first step. Don’t let complex legal jargon make you think this doesn’t affect you — it does. Share this with your friends, family, and community. Start conversations. It’s time we understood that the justice system doesn’t exist just for legal professionals; it exists for the people.

If the proposed 26th Amendment becomes law, it could lead to a judiciary that serves the interests of the government, not the people. The consequences of that are too dire to ignore. Let’s not wait until it’s too late to act.