Islamabad High Court’s (IHC) senior puisne judge, Justice Mohsin Akhtar Kayani, addressed the Islamabad High Court Bar Association, shedding light on critical concerns stemming from the controversial 26th Constitutional Amendment. The amendment, passed in October 2024, has reshaped Pakistan’s judiciary by limiting the Supreme Court’s suo motu powers, capping the chief justice’s tenure at three years, and empowering the prime minister to appoint the next chief justice from a panel of three senior-most judges. Justice Kayani remarked, “One letter changed the entire system of the country,” hinting at the central role a single document played in the legislation.
Despite the lack of elaboration, his comments resonated with the legal community, which has called for a full court bench to hear petitions challenging the amendment. Critics argue the law’s rushed passage undermined the judiciary’s independence. The International Commission of Jurists (ICJ) condemned the move, warning it “erodes the judiciary’s capacity to function independently.” Similarly, UN Human Rights Chief Volker Turk criticized the lack of consultation, describing it as a threat to democratic governance.
📌🇵🇰 The 26th Constitutional Amendment, passed by the #Pakistan’s #Parliament today, is a blow to judicial independence, the rule of law, and human rights protection, said @ICJ_Asia
— ICJ – Asia and the Pacific (@ICJ_Asia) October 21, 2024
#Pakistan: @volker_turk concerned that latest constitutional amendments – adopted hastily, without broad consultation and debate – will seriously undermine independence of the judiciary.
Constitutional reforms must be in line with international human rights law. pic.twitter.com/1WvDelniBV— UN Human Rights (@UNHumanRights) October 22, 2024
Controversial Changes and Criticism
The 26th Amendment grants a 12-member parliamentary committee, with proportional representation from all parties, the authority to select one of three senior-most judges as chief justice, replacing the long-standing system where the senior-most judge automatically ascended to the role. The committee’s recommendation is then forwarded to the prime minister, who submits it to the president.
The amendment also introduced provisions for a judicial commission to oversee new appointments, comprising judges, lawmakers, and a Pakistan Bar Council representative. This restructuring, critics argue, has politicized judicial appointments, allowing undue government influence over judicial processes.
The ICJ Secretary General, Santiago Canton, called the amendment a “blow to judicial independence,” adding it undermines the rule of law and human rights protection. Turk echoed these concerns, urging Pakistan to ensure constitutional reforms align with international legal standards.
Calls for Reform and Legal Community’s Role
Justice Kayani emphasized the legal community’s pivotal role in safeguarding the judiciary’s independence and addressing systemic issues like missing persons and attacks on personal freedoms. “We need independent judges who maintain the sanctity of the judiciary,” he asserted.
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Highlighting the importance of unity, Justice Kayani advised fostering camaraderie within the bar to reduce resentment, saying, “Invite people for tea, invite them for food so that resentments will reduce.” He also urged the federal government to expedite constructing Islamabad’s District Bar Complex, a long-standing demand of the bar, and lamented the lack of urgency in addressing such matters compared to legal reforms.
Justice Kayani concluded by urging faith in institutions despite challenges posed by the amendment, stating, “Even if there is a 26th Constitutional Amendment, you cannot be disappointed with the institutions. Only with the correct interpretation of the law can we see Pakistan on the path of progress.”
International and Domestic Implications
The amendment’s passage has sparked widespread debate, with international bodies like the ICJ and UN expressing concerns over judicial independence. Domestically, Justice Yahya Afridi has already been appointed as the next chief justice under the new framework, signaling the amendment’s immediate impact on Pakistan’s judiciary.
Justice Kayani’s remarks underscore the legal community’s responsibility to uphold the rule of law and resist political interference. As petitions challenging the amendment await a full court hearing, the debate continues over whether the 26th Amendment represents necessary reform or a step backward for judicial independence.