The Trojan Horse of Judicial Reform: An Analysis of Pakistan Controversial 26th Constitutional Amendment

Abstract

This paper is an incisive examination of continuous alterations in the 1973 Pakistan’s Constitution, suggesting that the changes have always been a tool of political expediency rather than manifestations of public interest. The historical trajectory of constitutional change is portrayed as a sequence of treacherous modifications, as the amendments are used to restructure the power system within the state institutions, which is usually against the judiciary independence. The new and very controversial 26th Amendment as not a well-intentioned reform, but a manipulative and cunning political action that is intended to put the judicial system in a state of juridical paralysis. The main mechanisms that the amendment introduces politicization of the Judicial Commission of Pakistan (JCP), the abandonment of the principle of seniority in judicial appointments and the establishment of malleable Constitutional Benches are dismantled to show a systematic process of effacing judicial independence. In a comparison and theoretical approach, the article shows how these changes amount to a basic abnegation of the pillars on constitutionalism, federalism and separation of powers. The final finding is that such a change of paradigm in the judiciary, to a potentially subservient arm of government, is a paradigm shift that negates the very social contract on which Pakistan was founded and puts in danger the pursuit of a stable, democratic polity.

Keywords: 26th Amendment, Independence of Judiciary, Separation of Power, Constitutional Benches, Judicial Appointments, Executive Influence.