The Pakistan judiciary strongly believes that the independence of judges is fundamental to democracy, especially in Pakistan, where the Judiciary occupies a vital position in the protection of the constitution, law, and order situation, Parliament arrest, checks and balances of the Executive and legislatures, etc. The 26th Amendment of the constitution of Pakistan, enacted in 2022, has caused a fair amount of controversy about what it may hold for the Pakistan judiciary. Just as there are calls for increasing transparency and accountability in the appointment of judges, there are worries about the political vulnerability of the Judiciary under the proposed Amendment.
The History Of The 26th Amendment
The 26th Constitutional Amendment Bill was passed in 2022 to attempt to bring charter to the country’s social and legal structure of judicial appointments. Pakistan has a relatively young judiciary, and, over its scores of years of existence, it has never been beyond political influence; there were differences made deliberately to use for political dominance over the Judiciary. One of the areas that has received much controversy is the Judicial Commission of Pakistan (JCP), which is in charge of appointing judges.
- The 26th Amendment was designed to solve these problems through the reform of the JCP and the inauguration of new processes for appointing judges. Among other changes, the Amendment proposed that:
- The Prime Minister would have a direct say in the judges’ appointment, especially the High Court’s Chief Justice.
- The judicial commission would be composed of more officials from the executive branch, thus increasing the government’s dominance in determining the judges to be appointed.
- The retirement age of the judges would change, which could lead to a change in the Judiciary.
Although these reforms were meant to improve the judiciary’s workings and increase transparency within the appointment of judges, questions about judicial independence and these changes have been raised.
What Is Judicial Independence
Administrative prescriptively is the situation in which judicial officers must be protected from influence as they make decisions. It is a principle of eradicable importance so that the Judiciary may be able to check and balance the other branches of the government and safeguard the rights of the citizens and the constitution. This element can be enacted through politically neutral means, and its main shields include lifetime appointments, separation of power, and non-interference by politicians.
Nevertheless, there is a limitation to the absolute independence of the Judiciary. Three areas are identified that highlight the method through which judges are chosen, and the nature of this procedure can affect their work in many ways, particularly their capacity to deliver unbiased judgments. It has been sometimes argued that the Judiciary, especially in Pakistan, is overly political or insufficiently publicized.
The Analyzing Role of Judicial Appointments in Pakistan
Judicial appointments have remained a subject matter of debate in Pakistan for years. The Judicial Commission of Pakistan, created under the 18th Amendment and passed in 2010, is responsible for making recommendations across appointments to the superior Judiciary, including the Supreme Court and the High Courts. The JCP members comprise the Chief Justice of Pakistan, the Prime Minister, members from the legal fraternity, and other worthy judges.
In the past, the process of appointing judges in Pakistan has been accused of nondemocracy and being open to political interference. There have been times when political factors influenced the selection of judges and led to the emergence of a biased judiciary. This has eroded confidence in the Judiciary and strengthened perceptions of partiality inside the Judiciary to the Executive or a given political party.
It was therefore deemed necessary to introduce the 26th Amendment, which would put in place some checks to prevent such developments. The idea was to have less political extraneous influence on the decision-making process and make it more open. However, critics say it will do the opposite, putting it under even more political control than ever before.
Political Involvement In Judicial Appointments
One of the most troublesome overtones of the 26th Amendment is that it leads to further political control of judicial selection. Accepting the Prime Minister’s control over the selection of judges could make those judges more vulnerable to the trical influence as far as the Amendment was concerned. The post-change governance meant the Prime Minister had a direct say in selecting prominent judges, including the Chief Justice of Pakistan.
This could increase the possibility of judges favoring the ruling party more than the qualified and impartial justices. Otherwise, the intervention of the executive branch in the process of selecting judges could harm the principle of judicial independence as*=I believe that the unlawful influence of the executive branch in the process of selecting judges to the bench could also spoil the principle of judicial independence since political criteria could be taken into account. Suppose judges are perceived as being cronies to the ruling government. In that case, they will not be able to make decisions unfavorable to the government or its legislative arms, hence a compromised system of checks and balances.
Risk of Partisan Judiciary
Even in cases with the political influence over judicial appointment, there is always a problem of partisanship in the Judiciary. In Pakistan, political polarization is one of the burning issues, and therefore, the Judiciary may also be exploited by the ruling party to create further political agendas. This would not only erode the authority of the Judiciary but would also reduce it to something other than an impartial institution.
Suppose the Judiciary is taken as belonging to a particular political party. In that case, the public will tend to distrust the Judiciary, especially when handling cases involving government or influential political leaders. This may develop into a scenario where the Judiciary is perceived more as a branch of the current ruling government, which may affect the rule of law.
Undermining the Separation of Powers
The doctrine of separation of power makes it impossible for a particular segment of power to be monopolized by a particular branch of the government, either the Executive, the legislative, or the Judiciary. This separation can be threatened by the 26th Amendment provisions that increase the executive branch’s power in judicial appointments and make the Judiciary more inclined to political decisions. If the Judiciary is seen as an agent of the Executive, then it may not be able to act as a watchdog on the Executive.
It might also open a dangerous precedent where successive governments regard themselves as free to change the legal bench to meet their needs in power. This would undermine the independence of the Judiciary and the opportunity to perform its constitutional duty of arbitrating disputes involving the Executive or delivering justice in matters of national interest.
Possibility of Judicial Reaction
Another problem with this 26th Amendment is the possibility of judicial retribution. If Congress increases its control over the Judiciary, there is a danger that judges may bend themselves to the ruling party’s needs to retain their jobs or promotions. Judges who tend to believe their appointment may be withdrawn or turned down by the government are likely to give a political leader or political party the benefit of the doubt even where the law does not allow the person to do so.
Such dynamics could open the floodgates for a highly corrupt and compromised judiciary where even the judges will forget their sworn constitutional oath of duty and work only with the sweet taste of the offending pot of gold for self or party gains. It could also lead to corruption of the judicial branch since several decisions would stem from political influence as opposed to lawful provisions.
Public Perception and Loss of Trust in the Judiciary
That is about political influence in the process of appointment of judges, which could also have negative impacts on the public about the Judiciary’s independence. This is especially true if the citizens feel that the Judiciary is under the executive branch and is organized by political parties. Thus, they may not have confidence in the Judiciary’s decisions based on fairness. It could, therefore, result in the demystification of the judicial system and the erosion of the provisions of the nation’s laws.
The Judiciary, as the third arm of government, requires the public’s faith in executing its responsibilities nicely in any democracy. People will end up not listening to the Judiciary, which will be perceived as a biased or political institution through which they will not seek justice. This might also lead to less credibility of Pakistan’s legal system in the future as it gradually becomes more susceptible to autocratic rule.
Possible Benefits of the 26th Amendment
Unluckily, these are the few drawbacks that the 26th Amendment possesses. Still, at the same time, it has the following advantages, which can change the judicial system of Pakistan for the better if it is used in the proper manner.
Transparency in Judicial Appointments
The proposed Amendment includes measures to improve the openness of the appointments to the Judiciary that might assist in easing protracted issues of the system’s opaqueness. The Amendment would bring systematic order to Jto’s selection and remove unpredicted bias, thus making the whole composition of the Judiciary apprehensive of political interference.
Efficient Appointment Process
Due to the change in the appointment process of judges, the Amendment could mean better, more timely appointments to the higher Judiciary of the country. This could go a long way in eradicating vandalism and ridding the justice delivery services of the evils of delayed justice.
A More Diverse Judiciary
By doing so, the merits of the Amendment could tally with the increased diversity in the selection of judges as well as the politics, society, and demography of Pakistan. This could improve people’s outlook towards the Judiciary by growing perceptions of its independence, which, in turn, would enable the delivery of fairly governed decisions to the public.
Conclusion
The 26th Amendment to the constitution of Pakistan is an attempt to provide a solution and improvement for judicial appointments. While the Court does so, it also provokes considerable concerns about the threats to judicial autonomy. In replacing certification with approval, the Amendment risks placing the Judiciary under a political umbrella. This view makes many people question its independence and ability to act as a watchdog against the ExecuExecutivele working towards making the Judiciary independent and at the same time having it be answerable to the other two branches of government; special care needs to be taken while dealing with the issue related to the change in the process of appointment of the judges. There is always the possibility of damaging the concept of judicial independence through political influence, and this aspect has to be controlled to protect the nation’s lawful authority and, in return, mobilize the public’s trust in the Judiciary.
Finally, the desirability of enshrining the 26th Amendment will be entirely determined by its practical application and the political environment. If done so wisely and in a way that respects the promise of judicial independence and impartiality, they can help enhance Pakistan’s legal framework. However, reform measures should be utilized to tighten political dominance over the Judiciary. In that case, it will bear ill effects on the country’s rule of law coupled with a democratic system of governance.
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