Twenty Sixth Constitutional Amendment, fall of Judicial Independence, And Executive Influence over the Judiciary in Pakistan

Abstract

The independence of the judiciary in Pakistan has long been a concern under both military and democratic regimes, as it is central to upholding the rule of law. Politicians have often sought judicial validation of unconstitutional actions through manipulation of judicial appointments, resulting in constitutional changes over time—most notably the 8th Amendment, which enhanced executive power, and later the 18th and 19th Amendments, which sought to restore judicial independence before the recent 26th Amendment again curtailed it. This paper critically examines the 26th Constitutional Amendment and its implications for judicial independence. It traces executive interference from independence to the Zardari era, analyzes the appointment process of judges, and reviews landmark cases such as Maulvi Tamizuddin, State v. Dosso, and Zafar Ali Shah, which illustrate how executive dominance has shaped the justice system. Key constitutional principles—judicial independence, separation of powers, and checks and balances—are highlighted as safeguards against political control. While the 19th Amendment strengthened judicial independence and facilitated greater judicial activism in subsequent years, the 26th Amendment reversed this trend by curtailing judicial powers. The paper also compares judicial appointment practices in developed countries, considers the Islamic perspective on judicial independence, and concludes with practical reforms to preserve the judiciary’s impartiality within Pakistan’s democratic framework.

KEY WORDS: Judicial independence, Appointments, Rule of law, Democracy, and Executive.