Fragile balance

The ongoing legal and political debate surrounding the 26th Amendment is more than just a matter of legal interpretation. It has now become an example of the rather deep-rooted tensions between the judiciary and the executive, and a reminder of just how delicate the balance of powers is. The petition filed by the PTI challenging the 26th Amendment is the 16th of its kind, highlighting the intense resistance this legislative change has provoked within the opposition and legal circles. The amendment, which alters the process for appointing the chief justice, limits the tenure of the office and introduces constitutional benches, has been widely criticised for encroaching on the independence of the judiciary. Now PPP Chairman Bilawal Bhutto-Zardari has weighed in: insisting that only parliament has the authority to reverse the amendment. In a way, this is the executive asserting its constitutional authority and safeguarding the legislative domain.

Interestingly, the PPP’s stance seems directed not just at the petitioners, but perhaps at any institutional bid to reverse the amendment. The message is clear: the legislature and no one else, not even the courts, should have the final say on matters of constitutional reform. This is a manifestation also of the ongoing friction between two vital branches of government. The demand for a full court hearing of the petitions related to the 26th Amendment has raised questions. While supporters argue that given the sweeping nature of the amendment, it is only logical to have all judges involved in the deliberations, others caution against allowing an institution to preside over a case where its own interests and powers are in play. Meanwhile, politicians argue that the judiciary has, at times, overreached by destabilising elected governments, striking down legislation, and exercising powers that were never meant to be in its hands. The 26th Amendment, from this perspective, is seen as an effort to rein in a judiciary that, in the eyes of some, had become an unaccountable force. While some may question the merits of the Amendment, it is important to note that the change was made through a legally legitimate process – passed by a two-thirds majority in parliament. This fact cannot be overlooked in the current debate.

Bilawal’s recent comments urging judges to “facilitate each other’s work rather than create obstacles” are more than just an expression of frustration; the reference to conflicts among senior judges and tensions within the Supreme Court itself reflect a fractured institution. Ultimately, the judiciary, as an institution with vast powers, must refrain from encroaching on the legislative space, while the executive must ensure it does not undermine the judiciary’s core role. The events unfolding before the Supreme Court are not just about the future of the judiciary but a rather nerve racking test of Pakistan’s ability to navigate the complex terrain of constitutional governance, where the power of each institution must be carefully balanced and mutually respected. As this lays out, we hope the judiciary and the legislature both remember that their power comes not from dominance over one another but from their shared commitment to upholding the constitution.