26th Amendment: How Will It Affect Judicial Independence?
The draft of the 26th Constitutional Amendment has emerged to some extent, although it is not yet the final draft, and when it is presented in the National Assembly, more changes may be made to it, but the draft that has emerged so far will have a significant impact on the judicial system.
12-member special parliamentary committee
The participation of the parliament in the judicial system will increase. According to this draft, the method of appointment of the Chief Justice of the Supreme Court, which was earlier done automatically under the senior-most method, has been changed.
And now a twelve-member special parliamentary committee will select one of the names of the three senior-most judges as the Chief Justice, which will be finally approved by the Prime Minister and the President.
Establishment of a commission headed by the Chief Justice
The parliamentary committee will have a proportional representation of the government and the opposition. According to the available draft, the procedure for appointing Supreme Court judges has also been brought under the influence of Parliament,
in which a commission headed by the Chief Justice of the Supreme Court, four senior-most judges, the Federal Law Minister, and the Attorney General will also be members of the commission.
Along with this, a lawyer nominated by the Pakistan Bar Council with at least fifteen years of experience will be a member of the commission for two years.
Two members of the National Assembly and two senators will be part of the commission. A woman or non-Muslim with technocratic qualifications in the Senate will also be made a member of the commission for two years.
Formation of a constitutional bench
The draft includes the formation of a constitutional bench, for which the judicial commission will appoint judges and it will determine the number of judges for the constitutional bench.
The provinces will be given equal representation in the constitutional benches and only the constitutional bench will be able to exercise its powers.
Constitutional interpretation matters will be scheduled for hearing by this bench. Similarly, a system of evaluating the performance of High Court judges has also been proposed in this amendment to improve their performance.
The performance of judges must be reviewed, they do not do this work, Shahzad Shaukat Advocate.
The current president of the Supreme Court Bar Association, Shahzad Shaukat Advocate, while talking to Private News, said that this amendment is not final yet. It will go to the National Assembly now and we will see what changes are made there.
However, one thing is reassuring no court is being created above the Supreme Court, but a constitutional bench is being established instead of a constitutional court. He said that one thing we are worried about is that the principle of seniority is being compromised.
Will this amendment affect the independence of the judiciary?
In response to this question, Shahzad Shaukat said that not at all because there will be judges in the Judicial Commission, the appointment of judges is in their hands.
He said that the system being brought to review the performance of judges is welcome, these judges do not work at all.
Will the current amendment affect the independence of the judiciary?
In response to this question, Faisal Siddiqui Advocate said that the amendment may not affect it, but how the amendment is being brought is affecting the independence of the judiciary.
At present, KP is not represented in the Senate because the Senate has not been elected. Then the way this amendment is being brought in haste and by forcing the members of the assembly, it will affect the independence of the judiciary.
