The National Assembly of Pakistan has passed 26^th constitutional amendment on October 21, violating the core principle of trichotomy of powers. The 26th amendment, also referred as the constitutional package, has been approved with a two-third majority of the parliament. The very first draft of the constitutional package consisted of 53 clauses, but after the consultation of parliamentary members, the number of clauses has been reduced to 26 clauses. The constitutional package includes many constitutional reforms including the appointment and retirement of the Chief Justice of Pakistan, changes for the Chief Election Commissioner of Pakistan and the evolution of Judicial Council of Pakistan as well. The purpose of the amendment bill is to limit the judiciary’s power in political and governance affairs.

The 26th constitutional amendment has introduced the new process for the appointment and retirement of the Chief Justice of Pakistan, undermining the independence of the judiciary by unduly bringing it under the control of executive and the parliament. The 26th Constitutional Amendment has amended the Constitution to give a “Special Parliamentary Committee” (SPC) for appointment of the CJP. Special Parliamentary Committee, consisting of eight members of the National Assembly and four members of the Senate, has the power to nominate the CJP from among the three most senior Supreme Court judges. While the 26th Constitutional Amendment stipulates that the SPC’s meetings must take place in camera, it does not provide any criteria or justifications for selecting the CJP. Before the amendment, the most senior judge of Supreme Court was appointed as the CJP, without any interference of parliament and executive in this process. The term of service for the Chief Justice of Pakistan (CJP) has also been reduced to 3 years, which used to be 5 years prior to the 26^th constitutional amendment.

The Judicial Council of Pakistan (JCP) has been evolved in the new constitutional amendment. The evolution involves the merging of the already existing Parliamentary Committee (8 members) and JCP (5 members) to establish a new JCP, consisting of 13 members. The new JCP consists of majority parliamentary members and judicial members are kept in minority, reducing the influence of judicial members over the judicial affairs. The powers of JCP include the appointment of judges of SC, nomination of “constitutional benches” in SC and High courts as well.

The amendment also introduces the establishment of new constitutional bench in Supreme Court (SC). The constitutional bench is made for the cases related to the constitutional amendments. The bench will be headed by the presiding officer and is responsible for making the Judicial Commission of Pakistan (JCP). Prior to the 26^th constitutional amendment, the CJP was responsible for making the JCP of Pakistan. Now, the constitutional bench will be responsible for decisions of all high profile cases of constitutional amendments. The amendment is giving exclusive power to the constitutional benches to have influence over the decisions related to constitutional cases. The constitutional bench will be playing the role of “a court in a court” in this regard, clearly undermining the judicial power.

The 26^th constitutional amendment has also introduced the changes regarding the term of service for Chief Election Commissioner of Pakistan. The term of service has been reduced to 3 years which used to be 5 years prior to the constitutional amendment. The amendment also gives the direction for re-appointment of Chief Election Commissioner of Pakistan by giving the lead of this position to the existing Chief Election Commissioner until the appointment of the new one. The re-appointment of the Chief Election Commissioner is totally wrong as it was avoided prior to the 26^th constitutional amendment for transparent working of the Election Commission without any external pressure. The legislative branch of the government has chances of taking advantage from this amendment by tempting the Chief Election Commissioner of Pakistan, thus ignoring the trichotomy of powers in the governance system of the country.

Since the 26^th constitutional amendment with its 23 clauses is now a part of the constitution of Pakistan, there are growing concerns over the violation of the concept of tricotomy of powers. The amendment is clearly an attempt to undermine judicial power in the governance system of the country, raising questions about its potential impact on the politics of Pakistan. Does the 26^th constitutional amendment align with the concept of trichotomy of powers, introduced in 1973 constitution of Pakistan? What will be the impact of undermining judicial independence in the governance system of the country? How will it influence the political system of the country?