By Afshain Afzal

The Constitution 26^th Amendment Act 2024, has been made law but the same invited a lot of criticism. The United Nations rights chief Volker Turk raised concerns over the new 26^th constitutional amendment saying that it will seriously undermine judicial independence. The Human Rights Commission of Pakistan has also demanded the withdrawal of the Amendment. The International Commission of Jurists dubbed the 26th Constitutional Amendment as a “blow to judicial independence”. Pakistan’s Foreign Office Spokesperson tried to respond the international criticism including the High Commissioner for Human Rights during a news briefing in which she said that it has been drawn from unwarranted and misplaced conclusions from media reports, social media posts, and speculative analysis. Unpublished remarks by the Indian Ministry of External Affairs reflect, “The Amendment became possible as we have friends inside Bureaucracy and Armed Forces as well as political system, which ensured delay in enforcement of Islamic provision of the constitution, boost to the western financial system by delaying Riba, political and executive controlled Judiciary and inclusion of non-Muslim and women at the top slots and non-official-controlled institutions.

At the national level, the 26^th Amendment is being criticized on a ground of interference in the independence of the judiciary. The concerns included; the constitutional package as 26th Amendment has some drafting issues and a "serious anomaly" related to Articles 191A, 175A(1) which may become a hurdle in the formation of constitutional benches in the Supreme Court. The new Judicial Commission of Pakistan cannot be created and no constitutional benches can be appointed unless this provision is amended via another constitutional amendment. However, it is not correct as if some members of the Judicial Commission are not available for the constitution of the constitutional benches then the available members can decide the constitutional benches. A couple of petitions challenging the 26th amendment has been filed in the Supreme Court of Pakistan and other Courts on the grounds including; the Constitution does not give parliament the right to encroach upon the basic structure of the Constitution due to which judicial independence has been done away with; setting a principle for the appointment of judges from the three most senior judges, formation of constitutional benches and requiring retirement before the age of 65 undermines the judiciary's autonomy; it is contrary to the principles of judicial independence and separation of powers and that various sections of the amendment are in-conflict with constitutional principles.

The invisible hands behind the drafters of Constitution 26^th Amendment Act 2024 tried to make fun of Islamic provisions of the constitution as well as the Judiciary in Pakistan to dishonor the personalities including honorable Judges in the same manner how they did with the District Administration in the past by converting Deputy Commissioners into District Coordination Officers? One wonders why others cannot smell foul play. Are Pakistanis really ignorant of the drama series of political prisoners; can’t they see that the grounds for someone’s comeback being prepared? If we recall a month earlier, “Peaceful Assembly and Public Order Act 2024” was made law in which under Clause 2 (f) District Magistrate has been defined as Deputy Commissioner and under Clause 6 the right of Appeal and Revision has been awarded to Chief Commissioner rather than a Court. In a nutshell, the 26^th Amendment must be challenged in the Supreme Court of Pakistan as well as floors of the Parliament. Complete analysis and rationale… clause-by-clause and sub-clause-by-sub-clause highlighting clear violations with the Constitution and rationale has been prepared to be shared with the Speaker, Chairman and Chief Justice of Pakistan.