By passing the 26th Constitutional Amendment, the parliament has affirmed its constitutional right to legislate. President Asif Ali Zardari, on the recommendation of Prime Minister Shehbaz Sharif, has ratified the 26th Constitutional Amendment, which was approved by a two-thirds majority in parliament, making it an official law. Through extensive consultation, the government and its allies passed this significant amendment with a two-thirds majority in both the Senate and the National Assembly, marking a milestone in the country’s constitutional history.
By passing the 26th Amendment, the parliament has reaffirmed its legislative authority within the framework of parliamentary democracy in Pakistan. Although the country has experienced constitutional amendments in the past, this one faced unique challenges, leading to extensive debates. The opposition in the parliament opposed the amendment, while within legal circles, there were mixed reactions. Nevertheless, the amendment was presented and passed following due procedures, which is a positive development.
This amendment represents a success for parliament as an institution. The appointment of judges will now reflect the collective wisdom of the parliament, moving away from the perception of merely functioning as a “post office.” A notable aspect of this amendment is that out of the four members to be nominated from the Senate and the National Assembly, two will come from the government benches and two from the opposition. Thus, the argument that this amendment seeks to increase the government’s influence is not accurate.
Limiting the Chief Justice’s tenure to three years and setting the retirement age at 65 years is a prudent decision, informed by past experiences. This amendment has significantly enhanced the dignity of parliament. The debate over whether one institution is supreme or subordinate should now end, and efforts should focus on further strengthening the democratic system. The credit for the approval of the 26th Amendment goes to all parties involved. Chairman of the Pakistan Peoples Party, Bilawal Bhutto Zardari, played a dynamic role in securing the amendment’s approval.
Maulana Fazlur Rehman also emerged as a key democratic figure, openly expressing his reservations, pointing out the shortcomings in the draft amendment, and successfully persuading the ruling party to adopt his suggestions. Prime Minister Shehbaz Sharif maintained continuous communication with all parties, demonstrating flexibility when necessary. Former Prime Minister Nawaz Sharif also played a statesmanlike role in ensuring the amendment’s passage. Young leader of the ANP, Aimal Wali, along with his colleagues, demonstrated excellent democratic strategy. MQM-Pakistan’s Maqbool Siddiqui and his team raised their concerns regarding parliamentary democracy, the constitution, and public interest while maintaining the coalition’s unity. MQM’s leadership not only voiced concerns for Karachi but advocated for the rights of the entire Pakistani population. Through shuttle diplomacy, contentious points were resolved, and consensus was reached on common ground.
Around the world, constitutional courts are specialized judicial bodies responsible for ensuring the constitutional validity of laws and government actions. These courts serve as guardians of the constitution, maintaining a balance of power. They play a crucial role in aligning laws with the constitutional framework and safeguarding democratic values. According to the new Article 191A, an “Constitutional Bench” will be established in the Supreme Court, with judges for this bench appointed by the Judicial Commission. This bench will ensure equal representation from all provinces. Other Supreme Court judges will not have jurisdiction over original cases, suo motu cases, constitutional appeals, or presidential references. The Constitutional Bench, comprising five members, will handle these matters.
Countries around the world have long recognized the importance of constitutional courts. Many nations, especially those with civil law systems, have adopted such courts. Even common law countries have constitutional courts. More than 80 countries currently have separate courts to review constitutional matters, including Germany, which is home to one of the most powerful constitutional courts globally. France also has a separate constitutional court, with the Constitutional Council serving as the highest constitutional authority. South Africa, too, has a constitutional court, established in 1994 following the end of apartheid, which played a central role in the country’s transition to democracy and the protection of human rights. Other countries with such courts include Italy, Spain, and Austria, where constitutional courts assess laws and government actions to ensure they comply with constitutional provisions.
In contrast, countries like the USA, Canada, and India do not have separate constitutional courts. Instead, their Supreme Courts handle constitutional reviews. In these nations, the existing constitutional framework is considered sufficient to meet these needs. Nevertheless, there are voices in these countries that advocate for the establishment of separate constitutional courts.
A constitutional court focuses exclusively on the interpretation and review of constitutional matters. It can pay greater attention to fundamental rights. Such a court, while upholding constitutional rights and principles, can act as a more effective and specialized guardian of civil liberties, clearly defining constitutional powers. In Pakistan, the boundaries of power between the judiciary, executive, and legislature sometimes blur. A constitutional court could provide clear checks and balances to prevent any branch from exceeding its authority. The example of constitutional courts is well-established in democracies around the world, offering considerable benefits.
Many democratic nations have adopted constitutional courts to strengthen their legal systems in response to historical, social, and political challenges. South Africa’s post-apartheid experience shows how a constitutional court can support democracy and protect human rights in a new society. Given Pakistan’s history of political instability and authoritarian rule, a similar institution could be beneficial. Although there is a strong case for a constitutional court in Pakistan, there are challenges, including institutional resistance. A faction within the Supreme Court may oppose the idea of sharing its authority with a separate constitutional court.
The establishment of such an institution would require careful coordination to ensure judicial responsibilities are shared effectively without undermining any institution’s authority. A constitutional court could bring significant benefits to Pakistan’s legal and political system by providing more effective constitutional oversight, protecting fundamental human rights, and strengthening judicial independence. Despite the challenges, the global success of constitutional courts demonstrates that such an institution could play a pivotal role in ensuring democracy, rule of law, and protection of fundamental human rights in Pakistan.
Considering the country’s complex legal and political landscape, a constitutional court could serve as a crucial step in ensuring the adherence to and protection of constitutional principles for future generations. The 26th Constitutional Amendment is a milestone in Pakistan’s parliamentary and constitutional history, solidifying the supremacy of parliamentary democracy in the country.