New hurdle? Pakistan’s controversial constitutional amendments challenged in top court

Challenges remain for Pakistan’s contentious 26th Constitutional Amendment, passed in marathon sessions two weeks ago after at least two months of effort to secure a two-thirds majority.

A former president of Pakistan’s Supreme Court Bar Association (SCBA), Abid Zuberi, along with six other lawyers, filed a petition in the Supreme Court on Monday challenging the amendment. The petitioners deemed the amendments unconstitutional and in violation of fundamental rights.

The petition contends that the amendment undermines the independence of the judiciary and distorts the basic structure of the Constitution by altering the process for judicial appointments.

"The Constitution’s essence is in the separation of powers and judicial independence," the petition states. It requests the court to declare the amendment unconstitutional and halt any Judicial Commission meetings for judge appointments.

The amendment, approved by the coalition government in the Senate and National Assembly with a narrow majority, grants a parliamentary committee the authority to nominate the Chief Justice of Pakistan (CJP) from among the three most senior Supreme Court judges. It also fixes the CJP's term to three years.

‘Interference with judiciary’

The petition argues that this provision "interferes with the judiciary's autonomy." The petition also raises concerns about the amendment’s requirement to create constitutional benches, asserting that this may result in a “parallel judicial system,” undermining the Supreme Court's authority.

Furthermore, the petitioners argue that the formation of these benches by the Judicial Commission could impact the integrity of case rulings and override the SC’s existing powers.

The amendment, which the Pakistan Muslim League-Nawaz (PML-N)-led coalition pushed through Parliament, faced significant opposition from the Pakistan Tehreek-e-Insaf (PTI) and other lawmakers.

The opposition parties that supported the government in passing the amendments included Jamiat Ulema-e-Islam-Fazl (JUI-F) and Balochistan National Party-Mengal (BNP), allowing it to surpass the two-thirds majority required.

'Timing, date for case not right'

Zuberi, who had previously opposed the amendment alongside other bar associations, withdrew an earlier petition before a three-member bench led by former chief justice Qazi Faez Isa.

Speaking to media outside the apex court following the withdrawal, Zuberi’s lawyer, also a PTI member, Hamid Khan explained that the decision to withdraw was based on the timing of the case, stating, "In these circumstances, we deemed it appropriate to withdraw this petition while reserving our right to challenge any future draft or proposal that may arise."

Commenting on Isa presiding over the bench, Khan further emphasized that it was customary for outgoing chief justices not to preside over significant cases, noting that incoming chief justices typically handle such matters as they will be responsible for following up on them in the future. "We believe that this was neither the appropriate time nor date for scheduling this case," Khan remarked.

Balochistan lawyers’ bodies challenge amendments

Meanwhile, the Balochistan Bar Council and Balochistan High Court Bar Association have also filed a petition through senior lawyer Munir A. Malik in the top court, similarly contesting the amendment on grounds that it violates judicial independence and disrupts the Constitution's foundational principles. The Supreme Court has yet to set a date for the hearing.