By Qamar Bashir
There are numerous grounds for challenging the 26th Amendment, including
constitutional, political, logical, and juristic objections. Politically, the issue is clear: the
assemblies were formed based on Form 47 rather than Form 45. The Election Tribunals
have not been constituted nor are they functioning; additionally, the Senate is incomplete,
as the senators from the KP Assembly have yet to be elected. Furthermore, the Supreme
Court’s majority judgment restoring the PTI as a parliamentary party and allocating
reserved seats has not been implemented. These and other unresolved issues have
rendered this parliament highly controversial. Therefore, from a political and logical
perspective, until these concerns regarding the parliament's authenticity and legitimacy
are resolved, it does not – and should not – have the legal, moral, or ethical standing to
introduce far-reaching constitutional amendments that fundamentally alter the structure,
nature, and spirit of the constitution.
There are several examples worldwide where amendments were prevented or delayed due
to political controversies, legal challenges, or issues of parliamentary legitimacy. For
example in Spain (1978–1980) after the transition from dictatorship to democracy,
constitutional amendments faced resistance until electoral legitimacy and full
parliamentary representation were achieved. Several amendments proposed to
decentralize powers were delayed until regional representation in the Spanish parliament
was settled and legitimacy established through fair elections. Spain required regional
representation in decision-making to ensure inclusivity.
In Italy (2016) proposed constitutional reform to reduce the powers of the Senate faced a
referendum and was blocked due to political controversies and the high level of
polarization surrounding the reform. The opposition argued that the parliament, due to a
political crisis and divided government, lacked moral authority to make such changes
without broad consensus. Ultimately, Italians voted against the reform, stalling the
amendments.
During Nepal’s transition to a federal republic (2015), the constitutional amendment
process was delayed due to unresolved political representation and territorial disputes
among provinces. The government was pushed to halt amendments, as opposition parties
questioned the legitimacy of the Constituent Assembly formed without full representation
from all regional and ethnic groups.
In Thailand in 2006 & 2014) the parliament was restrained from pushing through
constitutional changes due to controversies surrounding the electoral process and
legitimacy of the parliament itself. After military takeovers, temporary constitutions were
issued to suspend amendments until free elections and legitimate parliamentary
functioning were restored, signaling that amendments by controversial or incomplete
assemblies could not proceed.
Constitutionally, these amendments contradict the very essence of the constitution. The
spirit—or “DNA”—of the constitution is rooted in the trichotomy of power, which
requires a clear separation between the branches of government, ensuring that no branch
interferes in the internal matters of another and that no branch is subordinate to another.
However, the 26th Amendment disrupts this balance by placing the judiciary under the
administrative authority of the parliament and government, creating a dynamic akin to
that of master and servant. Under this arrangement, judicial appointments, promotions,
and transfers would be determined by the government or parliament, undermining
judicial independence.
Additionally, by reconstituting the Judicial Commission of Pakistan (JCP), the
amendment grants the parliament and government a controlling veto power over judicial
members. This structure ensures that decisions made by the JCP require the consent of
non-judicial members, meaning that even if all five judicial members agree on a decision,
it will only hold weight if endorsed by non-judicial members. This scenario can be
illustrated by imagining a government cabinet of 25 members, with 15 of those members
coming from the judiciary. In such a situation, it would be the judiciary—rather than the
government—controlling the executive. Similarly, the amendment enables the parliament
and government to exert control over the judiciary, encroaching on its autonomy. There
has been many examples where amendment made to give power to one pillar over the
other were challenged and were annulled
In the United States (Marbury v. Madison, 1803) landmark case established the principle
of judicial review, empowering the judiciary to challenge and nullify laws or
amendments that infringe upon its independence. Although not a direct amendment case,
it set a precedent by declaring that laws infringing on judicial authority are
unconstitutional.
In Turkey (2008), the Turkish government attempted to amend the constitution to limit
judicial independence, granting parliament increased authority over judicial
appointments. Turkey’s Constitutional Court ultimately annulled the amendment, ruling
that it violated the principle of separation of powers.
In India (NJAC Case, 2015) the Indian government attempted to pass the National
Judicial Appointments Commission (NJAC) Act, which sought to restructure the judicial
appointment process by granting the executive a say in judicial appointments. The
Supreme Court of India struck down the NJAC, ruling that it infringed upon judicial
independence and violated the basic structure of the constitution.
In Poland (2019) the Poland's government passed amendments giving parliament control
over judicial appointments and disciplinary actions. The European Court of Justice (ECJ)
found these amendments unconstitutional, asserting that they compromised judicial
independence, a principle essential for EU member states.
In Hungary (2013), Hungary's government sought to curtail judicial independence by
amending the constitution to centralize power over the judiciary within the executive
branch. The European Commission and Hungarian Constitutional Court intervened,
reversing parts of the amendments due to their impact on judicial autonomy.
However there were many other instances where constitutional amendments expanding
one branch's authority over another were upheld. In South Africa and Germany,
amendments granting limited executive oversight of the judiciary were maintained by the
courts, justified by pressing national security or social needs.
But these amendments were generally made by parliaments recognized as legitimate,
functioning within established democratic and constitutional frameworks.
Unlike Pakistan's situation, where unresolved issues around election tribunals, incomplete
parliamentary representation, and the unaddressed Supreme Court rulings have raised
concerns about legitimacy, these other examples involved decisions from parliaments
whose authenticity was not in question. The context and procedural integrity of a
parliament play a crucial role in determining the acceptability of constitutional
amendments, especially when they impact the balance of powers.
The 26th Constitutional Amendment, passed by a parliament facing serious legitimacy
issues, stands a reasonable chance of being challenged and potentially invalidated by the
courts in Pakistan.
