Pakistan’s judiciary faces major challenges post-26th Amendment

After Pakistan's 26th Amendment, the judiciary is navigating a new, complex landscape. Instead of easing the system’s long-standing issues, legal experts are warning of increased challenges.

Judges within the Supreme Court have openly disagreed in recent months, and the new changes are adding layers of administrative complexity. According to experts, the incoming Chief Justice of Pakistan, Yahya Afridi, will face eight major hurdles in the coming days.

Legal and constitutional experts believe the growing divide among the Supreme Court judges, their public criticism of each other through letters and written orders, and the demand by senior judges for a full court bench on important cases pose serious challenges. These issues have compounded following the administrative shifts brought about by the 26th Amendment, which has reshaped the way cases are handled within the judiciary.

Shifting of important cases to constitutional benches started

A key provision of the 26th Amendment is the creation of constitutional benches to handle fundamental questions of law. Cases that involve constitutional interpretation or challenges to laws will now be heard by these specialized benches.

On Thursday, the newly appointed Chief Justice Yahya Afridi ordered the Supreme Court's registrar to maintain records and begin transferring relevant cases to the new benches.

“The Registrar Office has been given a policy regarding the constitutional benches. A separate category for cases in which any law has been challenged or where the constitution’s interpretation is required will now be created,” Afridi stated.

Sources within the Supreme Court’s Registrar Office told Nukta that 40% of the cases currently pending at the Supreme Court involve constitutional questions.

This means more than 20,000 cases will be transferred to the new constitutional benches, which are yet to be fully formed. As of now, over 61,800 cases are pending at the Supreme Court, adding urgency to the process.

Case backlogs and delays

The President of the Supreme Court Bar Association, Shahzad Shaukat, noted in an interview with Nukta that the process of transferring cases to the constitutional benches has already begun.

Shaukat anticipates that over 10,000 cases will be shifted in the Supreme Court alone under the 26th Amendment, with the number expected to be significantly higher in the high courts.

He highlighted that most cases in the High Courts pertain to fundamental and constitutional rights, further complicating the process.

“This is a massive undertaking,” Shaukat said. “The backlog will grow, and it will take years for the courts to catch up.”

New judicial commission formation

Following the swearing-in of the Chief Justice, the next significant challenge is forming the new Judicial Commission. As per Article 175A of the Constitution, the commission will consist of 13 members, including five parliamentary representatives.

Two members will come from the Senate and two from the National Assembly—one from the Treasury benches and one from the opposition in each house. A woman or a non-Muslim member will also be appointed to the commission by the Speaker of the National Assembly, serving a two-year term.

However, the opposition party Pakistan Tehreek-e-Insaf (PTI), which boycotted the Special Parliamentary Committee during the Chief Justice's appointment process, has expressed reservations about nominating its representatives for the Judicial Commission. PTI is considering not appointing any representatives, though a final decision will be made by the party’s political committee.

In a press release, the Ministry of Law explained that the Judicial Commission, as redefined under Article 175A(2), will now comprise 13 members. The commission’s first order of business will be to nominate judges for the new constitutional benches of the Supreme Court. The most senior judge from these benches will serve as the senior judge of the constitutional benches.

The law ministry also clarified that no decision taken by the commission would be considered invalid, even if there are vacancies or absences from any meeting, as stipulated under Article 175A(3D).

Provincial constitutional benches

Another significant hurdle involves establishing constitutional benches at the provincial level. Experts believe it will take several years to fully implement this change across Pakistan's five high courts.

The Ministry of Law clarified that the formation of provincial constitutional benches under Article 202A will only become effective once the respective provincial assemblies pass a majority resolution.

Until these formalities are completed, the high courts will continue operating under their existing structures. Legal experts argue that while the formation of these benches will streamline constitutional cases, the process is expected to be long and complex.

Legal experts weigh in

Legal experts are divided on how the 26th Amendment will impact the judiciary in the long term. Hafiz Ahsan Khokhar, an advocate of the Supreme Court, told Nukta that while the amendment confirms the supremacy of parliament, it does little to resolve the fundamental issues within the justice system.

“We will see the daily transfer of cases to Constitutional Benches because a significant number of cases in both the High Court and Supreme Court pertain to constitutional rights,” Khokhar said. “Further legislative reforms are necessary, and I foresee a 27th Constitutional Amendment on the horizon to address these issues.”

Asad Mehmood Abbasi, a former member of the Judicial Commission, echoed this sentiment, saying that the complete implementation of the 26th Amendment will take between five and seven years. Abbasi argued that the recent amendments were made for political reasons and did not involve consultation with key judicial stakeholders, complicating the process.

“These changes fundamentally alter the structure of the judiciary. They cannot be implemented overnight,” Abbasi said. “It will take years of work, especially without input from those directly involved in the judicial system.”