Judicial Independence at Crossroads: The Case for a Full Court to Review the 26th Constitutional Amendment

The 26th Constitutional Amendment has placed the judiciary at the forefront of a crucial constitutional battle. This amendment, affecting the judiciary's structure and independence, has sparked concerns over its implications for the doctrine of separation of powers and the judiciary’s ability to function autonomously. A significant issue is whether its validity can be adequately reviewed by the pre-constituted constitutional bench, or whether it warrants the deliberation of the full court of the Supreme Court of Pakistan.

While a written request to the Chief Justice of Pakistan to constitute a full court was turned down, this decision raises important questions about the principles that should guide the judiciary in addressing amendments with potentially far-reaching consequences. Among these principles, the basic structure doctrine plays a critical role in shaping the case for a full court.

The Stakes: Judicial Independence and the Basic Structure of the Constitution

The basic structure doctrine, although not explicitly entrenched in Pakistani jurisprudence, has been acknowledged in cases where fundamental constitutional principles were at risk. This doctrine posits that certain essential features of the Constitution—such as judicial independence, separation of powers, democracy, and federalism—cannot be altered, even by constitutional amendment.

The 26th Amendment raises concerns that it infringes on the judiciary’s independence by altering its composition and potentially increasing executive influence. Such changes strike at the core of the Constitution’s basic structure, requiring the judiciary to step in as the ultimate protector of constitutional integrity. Limiting the review of this amendment to a single bench, especially one formed under its framework, risks undermining the principles of impartiality and comprehensive adjudication. A full court review, on the other hand, ensures that the issue is approached with the collective wisdom of all Supreme Court justices.

The Argument for a Full Court Review

1. Invoking the Basic Structure Doctrine

The challenge to the 26th Amendment is inherently tied to the basic structure doctrine. Judicial independence is a cornerstone of the Constitution’s basic structure, as it guarantees the separation of powers and safeguards against undue executive or legislative interference.

• Argument: A full court is necessary to determine whether the amendment violates the basic structure. Decisions of this magnitude must reflect the collective wisdom of the judiciary, given their implications for constitutional integrity and governance.

2. Nemo Judex in Causa Sua (No One Should Be a Judge in Their Own Cause)

The constitutional bench derives its authority and framework from the 26th Amendment itself, creating a potential conflict of interest when reviewing the amendment’s validity.

• Argument: Referring the matter to a full court ensures that the decision is free from any reasonable perception of bias, reinforcing public trust in the judiciary’s impartiality.

3. Ut Res Magis Valeat Quam Pereat (Let the Matter Have Effect Rather Than Fail)

This maxim emphasizes the importance of ensuring effective adjudication of significant constitutional matters.

• Argument: The 26th Amendment impacts judicial independence, an essential feature of constitutional governance. A full court review is necessary to comprehensively address the amendment’s validity and its alignment with the Constitution’s basic structure.

4. Institutional Integrity and Fiduciary Responsibility

The judiciary’s role as the guardian of the Constitution demands a collective approach to issues affecting its own independence.

• Argument: A full court review demonstrates the judiciary’s commitment to its fiduciary obligation to protect the Constitution, ensuring that decisions on foundational issues reflect the judiciary’s collective wisdom.

5. Precedents Supporting Full Court Reviews in Constitutional Matters

Pakistan’s judicial history includes instances where larger benches or full courts were constituted for cases of extraordinary importance. For example:

• 18th and 21st Amendment Cases: Larger benches reviewed amendments affecting judicial appointments and the balance of power between institutions.
• Supreme Court Bar Association v. Federation of Pakistan (2009): Issues concerning judicial independence were deliberated by a larger bench.

These cases demonstrate the judiciary’s recognition that fundamental constitutional questions require broader participation to ensure legitimacy and public confidence.

Judicial Maxims Supporting a Full Court Review

1. Salus Populi Suprema Lex Esto (The Welfare of the People Shall Be the Supreme Law)

The judiciary’s role as the protector of public welfare and constitutional rights requires that issues of profound national importance be deliberated thoroughly and transparently.

• Application: The implications of the 26th Amendment for judicial independence affect not just the judiciary but also the public’s trust in constitutional governance. A full court review ensures these concerns are addressed comprehensively.

2. Res Extra Commercium (Beyond the Reach of Ordinary Authority)

Certain constitutional matters, particularly those affecting the judiciary’s independence, transcend routine legal questions and demand extraordinary measures to safeguard the Constitution’s integrity.

• Application: Justice Shah and others can argue that the challenge to the 26th Amendment, as a matter affecting the judiciary’s basic structure, is beyond the reach of ordinary procedural norms and warrants a full court review.

Procedural Pathways to Revisit the Decision

1. Invoking the Basic Structure Doctrine in Judicial Deliberations

Even within the existing bench, dissenting justices can emphasize the application of the basic structure doctrine to demonstrate the amendment’s incompatibility with constitutional principles. This argument can lay the groundwork for future reviews or larger bench consideration.

2. Public Interest Litigation (PIL)

Civil society or bar councils could petition the court, demanding a full court review based on the amendment’s implications for judicial independence and the Constitution’s basic structure.

3. Judicial Advocacy for Procedural Reforms

The judiciary could consider procedural reforms requiring full court deliberation for cases involving challenges to constitutional amendments. Such reforms would prevent procedural disputes in future cases of similar significance.

Upholding the Basic Structure and Judicial Independence

The challenge to the 26th Constitutional Amendment is a defining moment for Pakistan’s judiciary. By invoking the basic structure doctrine, principles of impartiality, and institutional responsibility, the case for a full court review becomes compelling. Such a review is not just a procedural necessity but a principled step to safeguard the Constitution’s foundational elements.

The judiciary’s collective deliberation through a full court would reaffirm its role as the ultimate guardian of the Constitution, ensuring that decisions of profound national importance are rendered with transparency, impartiality, and legitimacy. By addressing this amendment comprehensively, the judiciary can protect not only its independence but also the constitutional framework upon which Pakistan’s democracy rests.