In Pakistan, Even Judges Are Now Under Trial: The 26th Amendment and the Battle for Judicial Independence
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Pakistan faces an unprecedented judicial crisis as lawmakers gain power to influence the appointment of top judges through the 26th Constitutional Amendment. The move has sparked fears for judicial independence and placed the Supreme Court itself under scrutiny.
Introduction
For the first time in Pakistan’s history, the judiciary itself is on trial — not for corruption or misconduct, but for the legality of its own future. In an extraordinary turn of events, the 26th Constitutional Amendment, passed hurriedly by Parliament in October last year, has given lawmakers and bureaucrats a decisive role in appointing the country’s top judges, including the Chief Justice of Pakistan (CJP).
The change has upended a decades-old convention: that the senior-most Supreme Court judge automatically becomes the Chief Justice. This tradition, upheld since independence, served as an unspoken safeguard for judicial independence, keeping political interference at bay.
Now, that sacred rule is gone — and the judiciary must determine whether the very law that governs its own appointments is even constitutional.
The 26th Amendment: How It Changed Everything
A Quiet Revolution in the Constitution
In October, Pakistan’s Parliament pushed through the 26th Constitutional Amendment, altering key provisions related to judicial appointments and tenure. The move was passed in what critics describe as “the dead of night”, with limited debate and questionable parliamentary consensus.
Under the amendment, the appointment process of the Chief Justice and other senior judges has been shifted from seniority-based succession to parliamentary selection.
The New Appointment Mechanism
Here’s how the new system works:
- A 12-member Special Parliamentary Committee — consisting of eight members of the National Assembly and four Senators — selects one of the three senior-most Supreme Court judges for the role of Chief Justice.
- The Prime Minister forwards the committee’s recommendation to the President, who formally appoints the selected judge.
- The Chief Justice now serves a fixed three-year term, replacing the earlier system where the senior-most judge served until retirement.
Supporters claim the new system “democratizes” judicial appointments, allowing Parliament to represent public interest. But critics call it a dangerous politicization of the judiciary — a move that threatens the very principle of separation of powers.
Why It’s Controversial
Politicians Picking Judges
For decades, Pakistan’s judiciary prided itself on a system that largely kept politics outside the courtroom. The seniority principle ensured that succession was predictable and shielded from manipulation.
By giving politicians and bureaucrats influence over who becomes Chief Justice, the 26th Amendment blurs the line between executive authority and judicial autonomy.
As one constitutional expert remarked, “If politicians can handpick the Chief Justice, they can handpick the verdicts.”
Risk to Judicial Neutrality
The amendment also introduces performance evaluations for judges, to be conducted by administrative officials and parliamentary representatives. Critics fear this could become a tool for political pressure, allowing governments to influence or punish judges for unfavourable rulings.
Lawyer and constitutional scholar Hamid Khan warned that such provisions could “erode the moral independence of the bench” and reduce judges to bureaucratic functionaries.
The Legal Challenge: Judges on Trial
Supreme Court Steps Into the Spotlight
Unsurprisingly, the amendment was immediately challenged in the Supreme Court. But what makes this case unique — and almost absurd — is that the judges themselves are now deciding on a law that directly affects them.
The Supreme Court formed an eight-member bench led by Justice Aminuddin Khan to hear 36 petitions filed by political parties, bar associations, and independent lawyers. Among the petitioners are the Pakistan Tehreek-e-Insaf (PTI), Supreme Court Bar Association, and several former judges.
At the heart of these petitions lies a profound question:
Can serving judges legally decide the fate of a law that determines their own appointment and tenure?
The Nemo Judex Principle
The dilemma revolves around a core tenet of natural justice — nemo judex in sua causa — meaning “no one should be a judge in their own cause.”
Abdul Basit Cheema, a Lahore-based constitutional lawyer, explained:
“Members of the current bench are direct beneficiaries of the very law being challenged. For the sake of both legal and moral legitimacy, the case must go to a full court.”
The Courtroom Drama
During the hearings, the atmosphere in Courtroom No. 1 has been electric.
Supreme Court Bar Association President Abid Zuberi questioned whether judges could remain impartial in a case that could determine their own professional futures.
Justice Jamal Mandokhail, responding to criticism, remarked:
“It wasn’t introduced by us — it was passed by Parliament. So don’t blame us.”
The comment, though brief, captures the awkwardness of the situation: a judiciary being forced to defend itself before itself.
The Petitions: Who’s Challenging What
Political and Legal Stakeholders
The 36 petitions before the court challenge not only the legitimacy of the 26th Amendment, but also the process by which it was passed. Petitioners allege that:
- The amendment did not receive the constitutionally required two-thirds majority in Parliament.
- It was rushed through without adequate debate or consultation with the legal community.
- It represents a “clear attempt” to undermine judicial independence.
The petitions also seek clarification on who is eligible to hear the case — a procedural puzzle that has split the legal community.
Divided Legal Opinion: Who Should Hear the Case?
The legal fraternity is sharply divided over who has the jurisdiction to hear the challenge:
- A Full Court of All 15 Judges:
Advocates of this option argue that such a historically significant case should be decided collectively by the entire bench to ensure legitimacy and transparency. - A Constitutional Bench Under the New Law:
Others contend that the petitions must be heard under the rules established by the 26th Amendment itself, meaning a smaller constitutional bench formed through the new parliamentary oversight mechanism. - The Pre-Amendment Bench (16 Judges Before CJP Isa’s Retirement):
A third group argues that only those judges who served before the retirement of former Chief Justice Qazi Faez Isa — and thus were not appointed under the new system — have moral authority to decide the case.
The lack of consensus reflects the broader constitutional confusion that the amendment has unleashed.
The Political Angle: Power and the Courts
Why Politicians Want Control
Pakistan’s courts have long been kingmakers and gatekeepers in national politics. From Prime Minister dismissals to election disqualifications, judicial decisions have shaped the country’s power structure.
Analysts believe that political parties across the spectrum — not just the current government — support greater influence over judicial appointments as a way to secure favourable outcomes in future cases.
A senior lawyer put it bluntly:
“Politicians don’t want an independent judiciary. They want an amenable one.”
The Stakes: Tax Cases, Elections, and Accountability
The implications go far beyond the judiciary’s internal hierarchy. If lawmakers can influence who becomes Chief Justice, they could potentially sway judgments on politically sensitive cases — including the Super Tax on corporations, election disqualifications, and accountability court verdicts.
This is why legal observers describe the situation as a constitutional crisis disguised as reform.
How It Alters Judicial Structure
The New Chief Justice Selection Process
Before the 26th Amendment, the senior-most Supreme Court judge automatically assumed the role of Chief Justice of Pakistan. This predictable, seniority-based system prevented favoritism and political bargaining.
Now, under the new law, a Special Parliamentary Committee chooses from among the top three senior judges, introducing an element of political discretion.
Fixed Tenure and Parliamentary Oversight
The Chief Justice’s term is now fixed at three years, ending the tradition of tenure based solely on retirement age. Supporters say this ensures smoother transitions; critics argue it encourages political deal-making — where governments could install judges who align with their agenda for a defined term.
Voices of Concern
The Bar’s Reaction
The legal community has reacted sharply. The Pakistan Bar Council and Supreme Court Bar Association have held multiple meetings to coordinate responses. Many argue that the 26th Amendment violates the Constitution’s basic structure by undermining the independence of the judiciary.
Lawyer and researcher Simra Sohail said:
“Using the provisions of a disputed law to decide its own fate exposes the fragile balance between law, politics, and justice. Whatever the judges decide will tell Pakistan how much it can trust its Supreme Court in the future.”
Civil Society and Media
Civil society groups and legal journalists have described the case as “a trial of the Supreme Court itself.” Nightly talk shows debate whether the amendment represents reform or regression, with most analysts warning that short-term political gains could destroy long-term judicial credibility.
What Happens Next?
The court’s decision — whenever it arrives — will have historic implications. If the 26th Amendment is upheld, Pakistan’s judiciary could become subordinate to political influence for the first time since independence.
If it is struck down, Parliament may retaliate through further constitutional changes, intensifying the executive-judicial tug of war that has plagued Pakistan for decades.
Either way, this case will define the future of checks and balances in the country.
Conclusion
The 26th Amendment has forced Pakistan to confront a defining question: Who guards the guardians?
By empowering politicians to choose judges, Parliament claims to make the process democratic. But critics warn that this so-called reform could turn the judiciary into an extension of political power.
As the Supreme Court deliberates on the very law that governs its own existence, the outcome will shape not just who becomes Chief Justice — but whether justice itself remains independent in Pakistan.
The judges, quite literally, are on trial.
