What is the 26th Amendment and how does it affect you?

For the first time in Pakistan’s history, lawmakers can elect whoever they want as the country’s top judge, which, as you can imagine, poses serious risks to the country’s judicial independence. Otherwise, the most senior judge of the Supreme Court tended to become Chief Justice of Pakistan. It was a sacred rule that kept politics out of court.

But all this changed in October last year, when Parliament rushed to vote to change the Constitution for the 26th time (which is why it is called the 26th Amendment). The new rules massaged the judicial system by giving Parliament and the bureaucracy greater control over the appointment and evaluation of judges.

As you can imagine, this change has been challenged in court. In fact, the Supreme Court. So now the top judges must decide whether the new rules that apply to them are even legal. The decision-makers themselves are being judged.

This is what talk shows after 8pm call a judicial crisis. If politicians elect the Chief Justice, then you don’t need to be a constitutional lawyer like Hamid Khan (or the late Asma Jahangir) to see that this is very problematic. This is how politicians could get a Chief Justice to decide in their favor in cases like the Corporate Super Tax.

If you want to go into more details…

As can be predicted, the 26th Amendment was taken to court. Multiple petitions were submitted. But it wasn’t just about listening to requests. What unfolded was perhaps one of the strangest legal contortions in our history: Before the Supreme Court could even begin to debate the merits of the 26th Amendment, its justices would have to ask whether they could even legally hear the case.

An eight-member bench headed by Justice Aminuddin Khan is hearing 36 petitions, including those filed by the PTI and bar associations, questioning how the amendment was passed. The petitioners maintain that it was approved “in the middle of the night” without a two-thirds majority in Parliament.

Supreme Court Bar Association President Abid Zuberi said judges must decide “whether they can benefit from the law.” Judge Jamal Mandokhail commented at one of the hearings: “It was not brought by us, it was passed by Parliament, so don’t blame us.”
The main question is whether serving judges can decide the fate of the 26th Amendment.

Read: SC challenges full court’s jurisdiction under Article 191A in 26th Amendment case

Lawyers are divided:

1. If the petitions were heard by a full court of 15 judges;
2. If the petitions were heard by the Constitutional Chamber in accordance with the new law, or;
3. Should the petitions be heard by the 16 judges who served before former CJP Qazi Faez Isa retired?

There is a principle that applies in the Law: nemo judex in sua causa: no one should be a judge in his own case. As lawyer Abdul Basit Cheema put it: “The members of the current court are direct beneficiaries of the law being challenged. The case must go before a full court to ensure its legal as well as moral legitimacy.”

What the judges decide will tell Pakistan how much it can trust the Supreme Court in the future, said lawyer and researcher Simra Sohail. “Using provisions of a disputed law to decide its own fate exposes the fragile balance between law, politics and justice,” he added.

How it changes the courts

Previously, the most senior judge of the Supreme Court automatically became the CJP. Under the new system, a Special Parliamentary Committee of 12 members, eight deputies and four senators, selects one of the three highest-ranking judges. The Prime Minister sends the name to the President for approval, and the CJP’s term is now set at three years.

The PCJ now includes legislators and a technocrat, giving the Executive greater influence over judicial appointments and performance reviews.

“They have made radical changes in the functioning of the judiciary,” said Hasnat Malik, senior court reporter at the Express PAkGazette, who has been attending the hearings. “Cases of public interest will now go before the constitutional courts chosen by the PCJ. Over the past year, much of the control has shifted to the Executive.”

Debate of reasons

In the latest hearing, senior lawyer Akram Sheikh argued that the amendment was aimed at shielding the February 2024 general elections from judicial scrutiny.

“There was fear that the Supreme Court could probe the elections once Justice Isa retired,” he told the eight-member Constitutional Court headed by Justice Aminuddin Khan. And he added: “The case must go to a full court of 24 members. It is the only way to guarantee fairness.”

Sheikh said the amendment “was drawn up to ensure that accountability can be avoided” and that the current bank “cannot possibly cut off the very branch it is sitting on.”

Observers link the amendment to the ruling coalition’s concerns over the reserved seats case. The government delayed notifying Justice Mansoor Ali Shah as chief judge until the amendment came into force, then used the new system to nominate Justice Yahya Afridi, third in seniority, as chief justice.

Courts formed under the new law have since issued verdicts favoring the government, including confirming civilian trials in military courts, approving judicial transfers, and reversing the Supreme Court’s July 13 reserved seats ruling, allowing the coalition to secure a two-thirds majority in the National Assembly.

Political context

The amendment was approved in October 2024 after intense negotiations. JUI-F’s Maulana Fazlur Rehman mediated between the coalition partners, while the PTI boycotted the vote. The PPP and JUI-F backed key changes, abandoning a proposal for a Federal Constitutional Court in favor of Constitutional Chambers.

Read more: Bilawal warns against repealing 26th Amendment outside Parliament

Prime Minister Shehbaz Sharif called the reform “historic” and said: “No institution will be above Parliament anymore.” But opposition leader Omar Ayub Khan described it as “the biggest setback in judicial independence since 1973.”
Justice Minister Azam Nazeer Tarar said it would “restore balance” after years of judicial overreach, but lawyer Aitzaz Ahsan warned it was “a step towards executive control over the judiciary”.

Reaction

The PTI, bar associations and civil society lawyers argue that the amendment violates Articles 175 and 191 by undermining the separation of powers. SCBA president Abid Zuberi called it “an assault on judicial independence.” Former CJP Jawad S Khawaja, through lawyer Khawaja Ahmad Hosain, said it “neutralized judicial oversight of the executive”.

In mid-2025, a new movement of lawyers led by Aitzaz Ahsan, Hamid Khan, Latif Khosa, Mustafa Nawaz Khokhar, Munir A Malik and Imaan Mazari took to the streets. Mazari said: “Justice has disappeared from both the courts and Parliament. This fight must now be taken to the streets.”

Also read: SC deliberates on formation of full court amid challenge to 26th Constitutional Amendment

Pakistan’s 26th Constitutional Amendment Explained [Source: Mehak Nadeem, Design: Ibrahim Yahya]

During deliberations on the new Code of Conduct for Judges, Justices Mansoor Ali Shah and Munib Akhtar warned in a letter that “any measure that limits [judicial] Independence or it can be used as a weapon to discipline, silence or control judges must be firmly resisted.” They said the vagueness of the rules allows for “selective application” against dissenting judges.

Critics say the 26th Amendment, the leave policy and Article V, which attorney Faisal Siddiqi called “nothing short of muzzling judges,” centralize authority and “muzzle” independent voices.

Lawyer Asad Rahim Khan argued that these measures isolate judges “from their bar and their community,” making judicial independence dependent on “a person’s virtue or courage” rather than institutional safeguards.

Even the International Commission of Jurists warned that the reform “exposes the judiciary to political influences.” The ICJ warned that the amendment violates Article 14 of the International Covenant on Civil and Political Rights, which guarantees equality before an independent and impartial tribunal. Al Jazeera reported that “it transfers control of the Supreme Court to Parliament and leaves aside opposition-leaning judges.”

Sheikh argued that if the amendment itself is void, then the constitution of the court under it is also legally ineffective. “The judicial authority of the court would cease to exist, which would make the Constitutional Court legally illegitimate,” he stated. In court, he joked: “Fortunately, the members of the court would still keep their heads, but not their hats.”