To conduct a comprehensive analysis of the 26th Constitutional Amendment of Pakistan in light of its consistency with the Constitution, the Preamble, and general legal principles, I'll evaluate key points and the broader legal framework:
1. Consistency with the Constitution and the Preamble
The Constitution of Pakistan, as outlined in its Preamble, guarantees:
- The sovereignty of Allah and the democratic authority of the people through chosen representatives(Constitution of Pakistan).
- The protection of minorities and adequate provision for their interests(Constitution of Pakistan).
- The independence of the judiciary, ensuring an independent body to uphold the rule of law(Constitution of Pakistan).
2. Incomplete Composition of National and Provincial Assemblies
- Senate Elections in KPK: The Constitution requires a complete composition of legislative bodies for democratic functioning. An incomplete Senate in KPK, due to delayed elections, violates Article 59 of the Constitution, which mandates a specific number of representatives from each province(26th Amendment). This delay undermines democratic representation and disrupts legislative processes.
- Non-allocation of Seats for Women and Minorities: Despite the Supreme Court's directive for immediate allocation of seats for women and minorities, non-compliance breaches Articles 51 and 106 of the Constitution, which stipulate reserved seats for these groups(26th Amendment)(Constitution of Pakistan). It violates the principle of equal representation and contradicts the Constitution’s commitment to protecting minority rights.
3. Validity of Constitutional Amendments in This Scenario
- Under Article 239, amendments must not contravene the Constitution's basic structure, which includes democratic representation, protection of minority rights, and judicial independence(Constitution of Pakistan). The 26th Amendment’s validity is questionable if implemented under an incomplete legislative body, as the legitimacy of such enactments would be compromised.
- Further, the Supreme Court has authority under Article 184(3) to ensure compliance with its orders. Failure to implement court decisions concerning seat allocations could lead to a constitutional challenge on the grounds of breach of judicial independence.
4. Trichotomy of Power Disturbance
- The 26th Amendment alters judicial appointments and the formation of constitutional benches. Under Article 175A, the judiciary’s independence is ensured through a balanced judicial commission(Constitution of Pakistan). The Amendment’s provisions, which shift decision-making authority from the judiciary to the executive and legislature, disturb the separation of powers essential for a functioning democracy(26th Amendment).
- This shift violates the Constitution’s principles, disrupting the balance intended to prevent any one branch from exercising undue influence over another. The trichotomy of power, as upheld by the Constitution, requires each branch (executive, legislature, and judiciary) to operate independently, ensuring checks and balances.
5. Judiciary-Specific Changes and Their Implications
- The 26th Amendment affects the appointment and powers of the Chief Justice of Pakistan (CJP) and the formation of constitutional benches. These changes reduce the judiciary’s autonomy, making it vulnerable to political influences from the executive and legislative branches. This contradicts Article 175, which mandates an independent judiciary to uphold citizens' rights and the rule of law(26th Amendment)(Constitution of Pakistan).
- Furthermore, these changes may violate the Objectives Resolution (Article 2A), which emphasizes the judiciary's independence as a cornerstone of the Constitution and democratic governance(26th Amendment).
6. General Principles of Law
- Doctrine of Separation of Powers: The Constitution enshrines this principle to prevent concentration of power and ensure accountability. Any amendment transferring judicial authority to the executive undermines this principle, as it disrupts the balance necessary for democracy.
- Rule of Law: Amendments that interfere with judicial independence or bypass constitutional mandates (such as the requirement for complete legislative bodies) violate this fundamental legal principle. Compliance with the Supreme Court's orders is not optional but mandatory to uphold the rule of law.
Conclusion
The 26th Constitutional Amendment of Pakistan raises significant constitutional issues:
- It challenges the balance of power between the judiciary, legislature, and executive by infringing upon the judiciary's independence and authority.
- It conflicts with constitutional provisions that ensure the rights of minorities and women by failing to enforce Supreme Court orders on seat allocations.
- The amendment's enactment under an incomplete legislative assembly questions its legitimacy and constitutionality.
If these inconsistencies persist, the amendment may be challenged in the Supreme Court, and its validity could be voided based on its inconsistency with the Constitution’s fundamental structure and the Objectives Resolution.
