By: Qamar Bashir
There are numerous grounds for challenging the 26th Amendment, including constitutional, political, logical, and juristic objections. Politically, the issue is clear: the assemblies were formed based on Form 47 rather than Form 45. The Election Tribunals have not been constituted nor are they functioning; additionally, the Senate is incomplete, as the senators from the KP Assembly have yet to be elected. Furthermore, the Supreme Court’s majority judgment restoring the PTI as a parliamentary party and allocating reserved seats has not been implemented. These and other unresolved issues have rendered this parliament highly controversial. Therefore, from a political and logical perspective, until these concerns regarding the parliament’s authenticity and legitimacy are resolved, it does not – and should not – have the legal, moral, or ethical standing to introduce far-reaching constitutional amendments that fundamentally alter the structure, nature, and spirit of the constitution.
There are several examples worldwide where amendments were prevented or delayed due to political controversies, legal challenges, or issues of parliamentary legitimacy. For example in Spain (1978–1980) after the transition from dictatorship to democracy, constitutional amendments faced resistance until electoral legitimacy and full parliamentary representation were achieved. Several amendments proposed to decentralize powers were delayed until regional representation in the Spanish parliament was settled and legitimacy established through fair elections. Spain required regional representation in decision-making to ensure inclusivity.
In Italy (2016) proposed constitutional reform to reduce the powers of the Senate faced a referendum and was blocked due to political controversies and the high level of polarization surrounding the reform. The opposition argued that the parliament, due to a political crisis and divided government, lacked moral authority to make such changes without broad consensus. Ultimately, Italians voted against the reform, stalling the amendments.
During Nepal’s transition to a federal republic (2015), the constitutional amendment process was delayed due to unresolved political representation and territorial disputes among provinces. The government was pushed to halt amendments, as opposition parties questioned the legitimacy of the Constituent Assembly formed without full representation from all regional and ethnic groups.
In Thailand in 2006 & 2014) the parliament was restrained from pushing through constitutional changes due to controversies surrounding the electoral process and legitimacy of the parliament itself. After military takeovers, temporary constitutions were issued to suspend amendments until free elections and legitimate parliamentary functioning were restored, signaling that amendments by controversial or incomplete assemblies could not proceed.
Constitutionally, these amendments contradict the very essence of the constitution. The spirit—or “DNA”—of the constitution is rooted in the trichotomy of power, which requires a clear separation between the branches of government, ensuring that no branch interferes in the internal matters of another and that no branch is subordinate to another. However, the 26th Amendment disrupts this balance by placing the judiciary under the administrative authority of the parliament and government, creating a dynamic akin to that of master and servant. Under this arrangement, judicial appointments, promotions, and transfers would be determined by the government or parliament, undermining judicial independence.
Additionally, by reconstituting the Judicial Commission of Pakistan (JCP), the amendment grants the parliament and government a controlling veto power over judicial members. This structure ensures that decisions made by the JCP require the consent of non-judicial members, meaning that even if all five judicial members agree on a decision, it will only hold weight if endorsed by non-judicial members. This scenario can be illustrated by imagining a government cabinet of 25 members, with 15 of those members coming from the judiciary. In such a situation, it would be the judiciary—rather than the government—controlling the executive. Similarly, the amendment enables the parliament and government to exert control over the judiciary, encroaching on its autonomy. There has been many examples where amendment made to give power to one pillar over the other were challenged and were annulled
In the United States (Marbury v. Madison, 1803) landmark case established the principle of judicial review, empowering the judiciary to challenge and nullify laws or amendments that infringe upon its independence. Although not a direct amendment case, it set a precedent by declaring that laws infringing on judicial authority are unconstitutional.
In Turkey (2008), the Turkish government attempted to amend the constitution to limit judicial independence, granting parliament increased authority over judicial appointments. Turkey’s Constitutional Court ultimately annulled the amendment, ruling that it violated the principle of separation of powers.
In India (NJAC Case, 2015) the Indian government attempted to pass the National Judicial Appointments Commission (NJAC) Act, which sought to restructure the judicial appointment process by granting the executive a say in judicial appointments. The Supreme Court of India struck down the NJAC, ruling that it infringed upon judicial independence and violated the basic structure of the constitution.
In Poland (2019) the Poland’s government passed amendments giving parliament control over judicial appointments and disciplinary actions. The European Court of Justice (ECJ) found these amendments unconstitutional, asserting that they compromised judicial independence, a principle essential for EU member states.
In Hungary (2013), Hungary’s government sought to curtail judicial independence by amending the constitution to centralize power over the judiciary within the executive branch. The European Commission and Hungarian Constitutional Court intervened, reversing parts of the amendments due to their impact on judicial autonomy.
However there were many other instances where constitutional amendments expanding one branch’s authority over another were upheld. In South Africa and Germany, amendments granting limited executive oversight of the judiciary were maintained by the courts, justified by pressing national security or social needs.
But these amendments were generally made by parliaments recognized as legitimate, functioning within established democratic and constitutional frameworks.
Unlike Pakistan’s situation, where unresolved issues around election tribunals, incomplete parliamentary representation, and the unaddressed Supreme Court rulings have raised concerns about legitimacy, these other examples involved decisions from parliaments whose authenticity was not in question. The context and procedural integrity of a parliament play a crucial role in determining the acceptability of constitutional amendments, especially when they impact the balance of powers.
The 26th Constitutional Amendment, passed by a parliament facing serious legitimacy issues, stands a reasonable chance of being challenged and potentially invalidated by the courts in Pakistan.
By: Qamar Bashir
Press Secretary to the President (Rtd)
Former Press Minister at Embassy of Pakistan to France
Former MD, SRBC
