26th Constitutional Amendment: Parallel judicial system?

The constitutional bench to be created in the amendments approved by the special committee of Pakistan's parliament will have more powers than the chief justice of the Supreme Court.

This constitutional bench - which will be appointed by the judicial commission - will be headed by the most senior judge on the bench. The presiding judge and the constitutional bench will exercise the Supreme Court’s powers under Articles 184, 185, and 186 of the constitution to directly hear petitions, decide appeals against High Court rulings in constitutional cases, and provide opinions on constitutional questions.

The amendments approved by the Senate also include Article 202A, which decides constitutional benches in the Supreme Court as well as in the provinces, in which the selection and tenure of judges will be decided by the judicial commission.

Federal Law Minister Azam Nazir Tarar said at Sunday's senate session that a constitutional bench will be established instead of a separate court at the request of opposition parties JUIF (Jamiat Ulema-e-Islam Fazl) and PTI (Pakistan Tehreek-e-Insaf). He added that this separate structure was envisaged in the 2006 Charter of Democracy, which was signed by the major political parties including PMLN (Pakistan Muslim League Nawaz) and PPP (Pakistan People's Party).

"The purpose of these judicial reforms is to give relief to the people by taking immediate action on their cases so that the high courts and the Supreme Court hear public cases while the constitutional bench decides only on the constitutional cases," he said.

However, constitutional experts believe that a parallel judicial system will be set up by transferring important powers to constitutional benches and appointing a presiding judge. This would lead to a new tug of war between the chief justice and the presiding judge of the constitutional bench.

PTI's Senator Hamid Khan says that this is not "a constitutional amendment but an unconstitutional amendment", which aims to destroy the basic structure of the judiciary and the foundation of the constitution, i.e the concept of an independent judiciary.

"These amendments are equivalent to subordinating the independent judiciary to the executive and parliament," Hamid Khan told Nukta.

He said the amendment will be challenged in court, and a lawyers' movement will be launched. The system introduced in this constitutional amendment will not be allowed to take effect.