Approval of the 26th Constitutional Amendment and Its Impact: A Detailed Analysis
By: Sahibzada Mian Muhammad Ashraf Asmi Advocate
Chairman, South Asian Lawyers Unity
The 26th Constitutional Amendment is a significant milestone in Pakistan's political and constitutional history. It was introduced by the current government and its allied parties after approval from both houses of Parliament. The passage of this amendment is not only a political achievement for the government but also considered a major advancement in the rule of law and the independence of institutions in the country. In this article, we will shed light on the details of the 26th Constitutional Amendment, its provisions, outcomes, and its impact on national politics.
The government and its allied parties finally succeeded in getting the constitutional amendment passed by Parliament. The Senate approved the 26th Constitutional Amendment on Sunday with a two-thirds majority of 65 votes, while there were 4 votes against it. Fifty-eight votes came from the government, five from Jamiat Ulema-e-Islam (JUI), and two from Balochistan National Party (Mengal). During the clause-by-clause approval of the amendment, members from Pakistan Tehreek-e-Insaf (PTI), Sunni Ittehad Council, and Majlis Wahdat-e-Muslimeen (MWM) walked out of the house. Later, the Senate passed all 22 clauses of the 26th Constitutional Amendment in stages.
In the related session, JUI-F Senator Kamran Murtaza presented an amendment for the elimination of interest (Riba), and during the session, a clause to completely abolish interest by January 1, 2028, was unanimously approved. After the upper house, the lower house (National Assembly) also approved the constitutional amendment early Monday morning. Under the chairmanship of Speaker Ayaz Sadiq, the National Assembly convened late Sunday night, where Naveed Qamar moved a motion to suspend the regular proceedings of the house, which was accepted. Routine proceedings were suspended for October 20 and 21. During the session, Law Minister Azam Nazir Tarar presented the motion for the 26th Constitutional Amendment, which was supported by 225 members, with 12 opposing the motion. Following this, the amendment was approved clause by clause, with 225 members voting in favor of the bill, while 4 opposed it. On this occasion, PTI members walked out of the house.
Under the 26th Constitutional Amendment, a constitutional bench of the Supreme Court will be formed, and the Judicial Commission will determine the number of constitutional benches and judges in the Supreme Court. Constitutional benches will also be formed in the Supreme Court and High Courts, and a 12-member special parliamentary committee will be established for the appointment of the Chief Justice. Judges from all provinces will be appointed equally to the constitutional benches, and the authority to take suo motu notice under Article 184 will rest with the constitutional benches. The parliamentary committee will appoint the Chief Justice from among the three most senior judges of the Supreme Court, and the committee's meeting will be held in-camera. On the committee’s recommendation, the Prime Minister will send the Chief Justice's name to the President of Pakistan. In case of refusal by a judge, the name of the next senior-most judge will be considered. The tenure of the Chief Justice will be three years, but the Chief Justice will retire before completing the term upon reaching 65 years of age. Under the amendment, the authority to take suo motu notice will be removed from the Chief Justice, and judges’ promotion will be based on performance.
According to the amendment, the Chief Election Commissioner will continue in office until a new Chief Election Commissioner is appointed after the end of their term. Under the amendment to Article 48(4) of the Constitution, advice approved by the President, Cabinet, and Prime Minister will not be challenged in any court or tribunal. The proposed amendment to Article 111 allows advisors to the Advocate General to address provincial assemblies on legal matters. The judiciary will not have the authority to issue rulings or interpretations beyond the requests made. According to the amendment to Article 179, the Chief Justice may only issue notices related to the petition.
Earlier, the federal cabinet approved the draft of the 26th Constitutional Amendment. A meeting of the federal cabinet, chaired by Prime Minister Shehbaz Sharif, was held in Islamabad on Sunday. During the meeting, Law Minister Senator Azam Nazir Tarar gave a detailed briefing on the 26th Constitutional Amendment. The federal cabinet approved the proposed draft of the 26th Constitutional Amendment, which was backed by the government's allied parties, including the Pakistan Peoples Party (PPP). Prime Minister Shehbaz Sharif, while addressing the meeting, stated that the cabinet had made the best decision for Pakistan’s development and prosperity, and for improving the country’s conditions. He congratulated the entire nation on the cabinet’s approval of the 26th Constitutional Amendment. The Prime Minister said the cabinet had upheld the oath to serve the country's development and the welfare of its people, and this milestone was achieved for the constitutional stability and rule of law after the economic stabilization of the country. He emphasized that the government would continue to work towards the nation's progress, prosperity, and stability.
Background of the 26th Constitutional Amendment Constitutional amendments in Pakistan have always reflected political issues and government priorities. The purpose of the 26th Constitutional Amendment was to bring judicial reforms and improve the justice system in the country. During this amendment, it was decided to establish constitutional benches in the country’s judiciary, particularly in the Supreme Court and High Courts, to ensure greater transparency and expedited decisions on constitutional matters.
This constitutional amendment became especially significant when the government and its allied parties successfully obtained approval from both houses of Parliament, the Senate, and the National Assembly. The Senate approved the amendment with a two-thirds majority of 65 votes, while only 4 members opposed it. Fifty-eight members of the government, 5 from Jamiat Ulema-e-Islam (F), and 2 from the Balochistan National Party (Mengal) voted in favor of the amendment. Similarly, the National Assembly also passed this amendment with a two-thirds majority of 225 members.
The Importance of the Clause on the Abolition of Interest One of the key provisions of the 26th Constitutional Amendment is related to the complete abolition of interest (Riba). During the amendment, JUI-F Senator Kamran Murtaza proposed the elimination of interest, which was unanimously approved. This decision expresses the determination to completely eliminate interest in the country by January 1, 2028. The issue of the abolition of interest has been a significant matter in Pakistan, given the country’s Islamic ideology and constitutional obligations. This amendment is expected to promote principles of economic justice and reduce the negative impact of the interest-based system on the poor segments of society.
Constitutional Benches and Judges’ Appointments The 26th Constitutional Amendment has introduced a new initiative in the judiciary. Under this amendment, constitutional benches will be established in the Supreme Court and High Courts, which will review and decide on various constitutional issues across the country. These benches will be formed with equal representation from all provinces, and the authority to take suo motu notices will rest with these constitutional benches.
The amendment proposes significant changes in how judges are appointed and how judicial decisions are made regarding constitutional matters
