THE ROLE OF THE JUDICIAL COMMISSION: JUDICIAL INDEPENDENCE IN PAKISTAN POST-26TH AMENDMENT

Abstract

Pakistan’s judiciary has strived for decades for independence in the face of changing sands of political gravity. This research investigates how the 26th Constitutional Amendment, which has been reformed recently and has also been a matter of immense controversy, has changed the playing field in terms of judicial autonomy and has done so by altering the structure of Judicial Commission of Pakistan (JCP) and by implication: the whole process of appointment. The present study follows the historical context of judicial independence in Pakistan from the point of time prior to the amendment with its emphasis on the constitutional provisions and judicial precedents before the amendment. In subsequent sections, it analyses the most important changes brought in by the 26th Amendment, namely reconstituted JCP, change in the method of appointment of the Chief Justice, introduction of ‘constitutional benches,’ and augmented executive role in judicial appointments, and considers their impact on judicial independence. The article uses a doctrinal methodology in which constitutional texts, judicial pronouncements and expert commentary are  reviewed, and in comparing the pre and post amendment scenarios. The findings reveal that the JCP’s composition is now tilting towards the political members, and that the powers of JCP are expanded in ways that critics accuse of compromising separation of powers. An analysis of how judicial independence has been interpreted in Supreme Court and High Court precedents will help in understanding how the interpretation of the issue can affect the future.