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Confronting the 26th Amendment

(By Basil Nabi Malik, Dawn Editorial, September 13, 2025)

Introduction

The editorial Confronting the 26th Amendment, authored by lawyer and columnist Basil Nabi Malik, engages with one of the most contentious constitutional issues in Pakistan’s recent history. The piece examines the dangers posed by the 26th Constitutional Amendment, which alters the process of judicial appointments and rebalances power between the judiciary and the political branches of government. Malik argues that this amendment is not a routine adjustment but a fundamental challenge to the “scheme” or basic structure of the Constitution, particularly the independence of the judiciary. He warns that the Supreme Court’s reluctance to confront this matter head-on risks eroding constitutional principles, undermining judicial credibility, and creating long-term democratic instability.

Contextual Background

Pakistan’s constitutional framework has long been shaped by tensions between elected institutions and unelected but powerful organs of the state. Amendments to the Constitution are often framed as necessary reforms but can carry deeper institutional consequences. In recent years, judicial appointments have been at the center of constitutional debate.

Earlier amendments, notably the 18th and 19th Amendments, modified the method of appointing judges by establishing a Judicial Commission and a Parliamentary Committee. These changes triggered extensive litigation. In a landmark 2015 decision, the Supreme Court affirmed that certain constitutional features—such as democracy, parliamentary government, and judicial independence—are salient features that cannot be undermined even through constitutional amendments.

The 26th Amendment, now under scrutiny, again shifts the balance of power in judicial appointments. Critics, including Malik, argue that it tilts authority away from the judiciary and towards the executive or legislature. This threatens the very independence of the courts, which is regarded as an irreducible component of the Constitution’s identity.

Main Arguments of the Editorial

Judicial Silence and Delay

Malik questions why cases challenging the 26th Amendment are not being prioritized. He points out that while the judiciary has shown speed in taking up politically charged cases, it appears hesitant to address an issue that directly concerns its own independence and institutional survival.

The Basic Structure Doctrine

At the heart of the editorial is the principle that every constitution has a basic structure or scheme that cannot be altered, even by amendment. In Pakistan, these salient features include democracy, parliamentary governance, and the independence of the judiciary. Malik stresses that by undermining judicial independence, the 26th Amendment crosses a constitutional red line.

Lessons from Precedent

Malik revisits earlier judicial precedents on the 18th and 19th Amendments. In those cases, the Supreme Court evaluated whether changes to the appointment mechanism preserved or undermined independence. Factors such as who initiates appointments, the ratio of judges versus non-judges on the commission, and where final authority resides were all considered critical. Malik asserts that the 26th Amendment fails this test, since it weakens the judiciary’s decisive role.

Political Avoidance and Judicial Hypocrisy

The editorial also highlights the political and institutional reluctance to address the issue. The amendment is messy and politically inconvenient, and perhaps that explains the lack of urgency. However, Malik condemns such avoidance, calling it hypocrisy. If the judiciary only defends its independence when convenient, then independence becomes a slogan, not a principle.

Implications

Constitutional Implications

If the 26th Amendment is left unchallenged, it sets a dangerous precedent that Parliament can alter or dilute the salient features of the Constitution at will. This undermines the doctrine of separation of powers and the principle of judicial review.

Political Implications

By increasing executive or legislative influence in judicial appointments, the amendment risks politicizing the bench. Judges may be perceived as beholden to the political class, which erodes public trust in their impartiality.

Institutional Implications

The credibility of the Supreme Court itself is at stake. If the Court fails to safeguard its independence, it cannot effectively safeguard the rights of citizens. Malik’s rhetorical question is sharp: how can a court deliver justice to others when it cannot deliver justice to itself?

Critical Assessment

The editorial’s greatest strength is its grounding in constitutional law and precedent. Malik writes not as a polemicist but as a constitutional lawyer, carefully explaining why judicial independence is part of Pakistan’s constitutional DNA. His argument is fortified by reference to past cases and by situating the debate in the doctrine of salient features.

However, the piece does not fully engage with the political rationale behind the amendment. Proponents of the 26th Amendment may argue that judicial appointments are too insular and elitist, and that greater democratic input is necessary. By not grappling with these counter-arguments in detail, the editorial may appear one-sided. Nevertheless, its central warning—that judicial independence cannot be compromised—remains compelling.

Reform Proposals

Malik’s editorial implies several reforms, which can be expanded into a CSS answer:

1. Judicial Safeguards: Judicial independence must remain constitutionally protected as a salient feature. No amendment should dilute the judiciary’s decisive role in appointments.
2. Clear Appointment Mechanism: Maintain a Judicial Commission dominated by judges, with limited but meaningful representation from executive and legislature.
3. Transparent Procedures: Judicial appointments should follow transparent criteria of merit and integrity to counter accusations of insularity.
4. Supreme Court Responsibility: The Court must confront constitutional amendments directly and not avoid politically sensitive cases.
5. Public Engagement: Wider parliamentary debate and public consultation should accompany any amendment affecting constitutional structure.

Vocabulary for CSS (with Urdu)

CSS-Oriented Questions

Essay Questions

1. “Constitutional Amendments and Judicial Independence: A Critical Analysis of Pakistan’s 26th Amendment.”
2. “Discuss the doctrine of salient features in Pakistan’s constitutional jurisprudence. Can Parliament amend every part of the Constitution?”

Short Notes

• Judicial appointments and independence of judiciary in Pakistan.
• The doctrine of basic structure and its limits.
• Credibility crisis of the judiciary under the 26th Amendment.

Problem-Solving Questions

• Draft a constitutional framework for judicial appointments that balances democratic input with judicial independence.
• Evaluate whether the Supreme Court should strike down the 26th Amendment using past precedents.

Conclusion

In sum, Basil Nabi Malik’s Confronting the 26th Amendment is a constitutional warning. It reminds readers that independence of the judiciary is not a luxury but a necessity for democracy and the rule of law. The 26th Amendment, by altering the judicial appointment mechanism, risks politicizing the bench and undermining the separation of powers. The judiciary’s reluctance to confront this amendment undermines its own authority and credibility. For Pakistan to maintain a functional democracy, judicial independence must remain a non-negotiable principle, safeguarded even against the tides of constitutional amendment.