KARACHI, Pakistan: A petition challenging Pakistan’s 26th Constitutional Amendment was filed in the Sindh High Court (SHC) on Saturday, adding fuel to an ongoing debate on the amendment’s impact on judicial independence. The petition, brought forward by two lawyers, seeks a declaration that the amendment is unconstitutional, alleging procedural flaws and undue executive influence on the judiciary.
The petition marks the second such filing in the SHC in a week, reflecting growing legal and public scrutiny. It also follows a related challenge filed in the Supreme Court, signaling that Pakistan’s judiciary may be facing significant changes in its structure and appointment processes.
Background of the 26th Amendment Challenge
The petitioners argue that the amendment was improperly passed and lacks the required two-thirds majority in Parliament, which is essential under Article 239 of the Constitution. They also assert that several lawmakers were “coerced or unlawfully inducted” to support the amendment. Furthermore, the amendment has been labeled as a potential infringement on the judicial independence of Pakistan, allowing the government more control over appointments in the judiciary, particularly in the Judicial Commission of Pakistan.
The petitioners believe that including non-judicial members in the Judicial Commission undermines the judicial selection process. This would allow the executive branch to influence judicial decisions indirectly by having sway over judicial appointments, weakening the separation of powers—a central tenet of Pakistan’s democratic framework.
Key Arguments Against the Amendment
The petitioners’ case centers on several primary arguments:
- Constitutional Breach: The lawyers claim the amendment was not lawfully passed, alleging that certain members of the National Assembly were compelled to support it. They argue that disputes over the membership status of certain lawmakers were still pending before election tribunals, rendering their votes potentially invalid.
- Judicial Independence: The petition claims that the amendment would compromise judicial independence by allowing the government to appoint the chief justice and other senior judges. This change, they contend, contradicts the principles established in previous Supreme Court rulings, such as the 2015 Rawalpindi Bar Association case, which reaffirmed the separation of powers between the judiciary and the executive.
- Violation of Constitutional Structure: Petitioners argue that parts of the 26th Amendment infringe upon the core principles of the Constitution. By potentially allowing executive influence within the judiciary, the amendment could weaken citizens’ rights to a fair judicial process.
Public Backlash and Protests by Karachi Bar Association
On Saturday, the Karachi Bar Association (KBA) held a rally from City Courts to the Karachi Press Club in protest against the amendment. KBA President Amir Nawaz Warraich and Sindh High Court Bar Association Vice President Zubair Ahmed Abro led the demonstration, decrying the amendment as “a direct attack on judicial independence” and a potential setback for citizens’ rights. Protesters echoed these sentiments, emphasizing the risk of politicizing the judiciary.
Next Steps: Legal and Public Repercussions
The petitioners have requested the formation of a larger bench, comprising the five most senior SHC judges, to address the case. The recent spate of legal challenges highlights the deepening divide within Pakistan’s legal and political communities over the amendment’s legitimacy. As both the SHC and Supreme Court prepare to examine the amendment, the outcome could have a significant and lasting impact on Pakistan’s judicial independence.
