The 26th Constitutional Amendment of Pakistan introduces significant changes to the judicial system, particularly in the structure and authority of constitutional benches within the Supreme Court. This amendment, aimed at judicial reforms, stipulates that a 5-member constitutional bench has authority over constitutional matters, while decisions from larger benches (such as 7-member benches) can be referred back to these 5-member panels. However, given that the total number of judges specializing in constitutional law in Pakistan's Supreme Court is currently only five, this amendment creates several constitutional and operational dilemmas.
- Conflict of Bench Authority: The amendment allows a 7-member bench to make decisions that are referred back to a 5-member bench for final adjudication. This structure contradicts the general hierarchy, as larger benches traditionally hold higher authority. The reversal of this hierarchy may cause confusion and undermine the traditional weightage of larger benches, which could lead to conflicting interpretations of the Constitution.
- Insufficient Judges for Constitutional Matters: The total number of constitutional law experts being limited to five means that the Supreme Court might struggle to meet the requirements of the amendment, particularly if all these judges are engaged in simultaneous constitutional matters. This shortage could result in delays, impeding the delivery of timely justice and overburdening the available judges.
- Judicial Independence vs. Executive Control: A controversial aspect of the 26th Amendment is the provision that gives the government increased power to determine bench composition. This raises serious concerns regarding the independence of the judiciary, as political influence could be exerted through selective bench formation. Comparatively, in systems like the United States or the UK, bench composition remains the prerogative of the judiciary itself, ensuring insulation from political and executive interference.
- United States: The U.S. Supreme Court has complete autonomy in determining the composition and structure of its benches. The Chief Justice plays a crucial role in this process, and there is no government intervention in selecting which justices sit on particular cases, preserving judicial independence and consistency.
- United Kingdom: The UK judicial system follows a similar approach, where the Chief Justice and senior judiciary members hold the authority to allocate cases and bench compositions. This model, again, ensures that political or legislative branches cannot influence judicial proceedings directly.
- India: The Indian Supreme Court follows the "Master of the Roster" principle, where the Chief Justice of India alone decides bench compositions. While this system has faced criticism for potential internal biases, it still maintains judicial independence from executive interference, contrasting with the new provisions proposed in Pakistan’s amendment.
- Increased Legal Challenges: The 26th Amendment, if fully implemented, is likely to face legal challenges. Opponents may argue that giving the government authority over bench formation violates the principle of judicial independence guaranteed by the Constitution. This could lead to frequent litigation, questioning the amendment's legality and its compatibility with constitutional safeguards.
- Perceived Bias and Public Distrust: If the government uses its power to appoint judges who may favor its position in high-profile cases, it could undermine public confidence in the judiciary. A perceived lack of impartiality may lead to political and civil unrest, as the judicial system is seen as a tool of the executive rather than an independent arbiter of justice.
The 26th Constitutional Amendment represents a critical juncture for Pakistan’s judicial system. While it aims to streamline processes and reinforce constitutional authority, its approach—particularly the empowerment of the government to form benches and the apparent reversal of bench hierarchies—poses significant risks to the independence and efficacy of the judiciary. Comparatively, global models emphasize judicial autonomy as a safeguard against political interference, a principle that the amendment seems to compromise. If not carefully managed and revised, these changes could lead to constitutional crises and diminished public trust in Pakistan's judicial institutions.
To achieve the stated goals of accessibility and efficiency without sacrificing independence, further consultations and a rebalancing of authority between the judiciary and executive may be necessary
Attended University of Sindh, Jamshoro
2 天前Asslamoalikum sir hope this msg finds you well. Sir i have gone through your opinion and i have a quire which is: whether the supreme court has jurisdiction to hear this case or constitutional bench. As per nemo judex causua how the constitutional bench can hear themselves and if we are appearing before the constitutional bench that means we are admitting the amendment then no question of challenging amendment arise. And if we appear infront of supreme court then how could we satisfy the grounds of jurisdiction?
Strategic advisor, AI Leveraged Strategic Project Management Practitioner, EPMO Management, Contract and Interface Management, Trainer, Author, Speaker
1 个月Very well articulated the scenarios, the amendment is made to safe guard the interest of mafias in Pakistan. There is no public interest in view nor served. Public need to protect themselves from growing adversities. May ALLAH help us.