26th Amendment and Judicial Independence

Amending the constitution is the privilege of parliament, whether these amendments are beneficial or harmful. The boundaries of all institutions—whether parliament, the judiciary, or the legislature—are clearly outlined within the constitution, and each institution’s jurisdiction and nature of authority are distinct and should remain so. The judiciary holds the power of constitutional interpretation, and the Supreme Court’s decisions are final and binding.

This power is unique and lies solely with the judiciary, not with parliament. When this authority is used correctly, it strengthens society and upholds the supremacy of the constitution. However, if misused, it can lead to societal discord. Many countries, including the U.S., have issued landmark decisions through their highest courts, which have had lasting impacts on society. The Roe v. Wade (1973) case had decisive effects on American society.

Ultimately, the U.S. Supreme Court granted abortion rights after a long struggle for them. In President Joe Biden’s era, there was an attempt to amend the U.S. Constitution to overturn the Supreme Court’s 2022 decision in *Dobbs v. Jackson*, which had revoked the rights granted in 1973. This issue illustrates the ideological divide between Democrats and Republicans, a divide that also affects the judiciary.

Currently, the Democratic government in the U.S. faces a judiciary with predominantly conservative judges aligned with Republican ideals. Judges with a Democratic mindset are in the minority in the Supreme Court, so Democrats are advocating for constitutional amendments to change the nomination and appointment process of Supreme Court justices. Any future constitutional amendment in the U.S. is likely to focus on this issue.

The amendment process in the U.S. is highly complex and almost impossible. Since 1973, only one amendment has been made in the U.S. Constitution. The same constitution stands, but interpretations differ based on whether a Republican or Democratic-aligned judge interprets it.

The Bhutto case taught us that constitutional interpretation should be done through a single federal lens. Justice Dorab Patel advocated for a separate constitutional court, a practice adopted in several countries. Both of Pakistan’s major parties, including Quaid-e-Azam, reached the same conclusion, leading to the ‘Charter of Democracy’. This court can be called constitutional or federal, as it provides equal representation to all provinces, similar to the Senate.

Although amending the constitution is parliament’s duty, there are cases where the Supreme Court, through its rulings, has effectively amended the constitution, as seen with Article 63A. Fortunately, the Court corrected this in a review, unlike in the U.S., where amendments are nearly impossible.

In the U.S., the Court’s rulings hold de facto authority over constitutional interpretation. This gives substantial power to the conservative faction, including the Republican Party. In Pakistan, the 19th Amendment, pushed by the then Chief Justice Iftikhar Chaudhry, skewed the balance of power, giving appointment authority to the judiciary, which has since impacted judicial independence.

After the 19th Amendment, the 26th Amendment has sought to restore some balance while limiting the judiciary’s unbridled autonomy. These decisions have impacted the judiciary’s structure and moral standing. In Pakistan, this journey has evolved from military coups to what some now term as judicial coups.

Will the 26th Amendment mark the beginning of a new journey? It is indeed a new direction. The 19th Amendment granted appointment authority to the judiciary, yet standards were not set for appointments in either the High Court or the Supreme Court. This was the judiciary’s prerogative, but it failed to address allegations against some judges.

Some argue that the 26th Amendment curtails judicial independence, but the judiciary itself set the stage for this amendment. Amending Article 63A and the ensuing rulings contributed to political instability, weakened the economy, and suggested that a specific faction held supreme authority, leading to the current crisis.

In the U.S., Roe v. Wade was a victory for progressive ideals, aligned with the Democratic Party and the ethos of Martin Luther King Jr. The 2022 *Dobbs v. Jackson* decision was a triumph for conservative ideology, reflecting Trump-era values.

The fight for judicial independence must begin anew. The 2007 struggle for judicial independence was marred by subsequent judicial activism. The 26th Amendment must ultimately be repealed, but not before efforts are made to strengthen the judiciary and the constitution itself.

For those critical of Justice Qazi Faez Isa, history may prove them wrong. The 26th Amendment was passed by parliament, while Justice Isa merely annulled the 63A judgment after a prolonged two-and-a-half-year delay. Justice Isa’s live broadcasts of judicial proceedings and his relinquishment of the Master of Roster power challenged by former Chief Justice Bandial highlight his commitment to transparency.

Justice Isa will be remembered in golden words for restoring parliament’s lost dignity and upholding the principle that only parliament has the right to amend the constitution. The Marbury v. Madison (1803) case established the foundation for judicial review, but unchecked judicial activism and suo motu actions represent the darker side of the judiciary.

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