26th Amendment Case Justice Mazhar Defends Judicial Unit

The 26th Amendment Case has once again placed Pakistan’s judiciary in the national spotlight. During Tuesday’s hearing, Justice Muhammad Ali Mazhar made a statement that instantly sparked debate:

“Regular and constitutional benches are branches of one tree.”

His words came as an eight-member Constitutional Bench (CB) heard petitions challenging the controversial 26th Amendment to the Constitution — a law that reshaped judicial authority, limited suo motu powers, and redefined the appointment process of the Chief Justice of Pakistan (CJP).

While Justice Mazhar’s metaphor symbolizes unity within the judiciary, it also highlights the growing tension between independence and institutional restructuring.

Background: The Controversial 26th Amendment

Passed overnight in October 2024, the 26th Amendment has divided political parties and legal experts alike. Opposition leaders, including the PTI, alleged that seven of their lawmakers were coerced to vote in favor of the bill.
The Balochistan National Party-Mengal (BNP-M) also accused authorities of pressuring two senators — both of whom eventually defied their party’s stance and supported the legislation.

The amendment introduced three key changes:

1. Reduced Judicial Independence: It curtailed the Supreme Court’s suo motu powers.

2. Limited CJP Tenure: The Chief Justice would now serve a fixed three-year term.

3. Parliamentary Role in Appointments: A Special Parliamentary Committee was empowered to appoint the CJP from among the three most senior judges.

These provisions have raised concerns about executive interference in judicial affairs. Critics claim it weakens the separation of powers, while supporters argue it ensures transparency and accountability.

Inside the Hearing

The bench, headed by Justice Aminuddin Khan, included Justices Mazhar, Jamal Khan Mandokhail, Ayesha Malik, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan, and Shahid Bilal Hassan. 26th Amendment Case Justice Mazhar Defends Judicial Unit

During the session, retired Justice Syed Shabbar Raza Rizvi and counsel Dr Adnan Khan presented arguments against the amendment.

Justice Mazhar and his colleagues debated whether the new Article 191A — which established Constitutional Benches — had superseded the Supreme Court’s powers under Article 184(3).
Justice Mazhar noted that the new law transferred certain powers to Constitutional Benches but did not strip the Supreme Court of its authority.

“Regular Bench and Constitutional Bench are two branches of one tree. Nobody is saying the CB is above or below the Supreme Court,” he remarked.

His statement was interpreted as a call for unity and coherence within the judiciary amid political pressure.

Positive Outlook: Unity and Balance

From a positive standpoint, Justice Mazhar’s words serve as a reminder that Pakistan’s judiciary remains a single institution with shared roots, even as its branches (divisions and benches) perform different functions. 26th Amendment Case Justice Mazhar Defends Judicial Unit

1. Judicial Unity: His statement sends a message of institutional cohesion — that all benches are connected through the same constitutional framework.

2. Public Confidence: By reiterating that no bench is “above or below,” the judge aimed to reassure citizens that justice flows from a common source.

3. Functional Diversity: The division of benches could be seen as administrative efficiency rather than fragmentation.

Supporters argue that the 26th Amendment creates a system where parliament and judiciary coexist in balance, preventing the concentration of power in a single office.

Negative Concerns: Erosion of Independence

Yet, the same metaphor also reveals the system’s vulnerability. If the roots — the Constitution and the Supreme Court’s autonomy — are weakened, the entire “tree” could collapse. 26th Amendment Case Justice Mazhar Defends Judicial

1. Political Influence: By involving a Parliamentary Committee in judicial appointments, the executive gains leverage over the judiciary.

2. Institutional Conflict: Creating a powerful Constitutional Bench could marginalize regular benches and create hierarchical confusion within the court.

3. Loss of Judicial Independence: Legal scholars fear that the reforms may compromise the Supreme Court’s ability to act freely under Articles 176 and 187.

Several commentators have called the amendment a “slow poison” to the independence of Pakistan’s courts. The International Commission of Jurists (ICJ) even described it as a “serious setback to constitutional democracy.” (ICJ.org)

Comparative Perspective: India and Pakistan

Justice Mazhar pointed out that India still follows the “Master of the Roster” system, where the Chief Justice has the final authority to assign cases. Pakistan, meanwhile, has moved toward a committee-based system to determine bench formation. 26th Amendment Case Justice Mazhar Defends Judicial

This comparison highlights Pakistan’s attempt to create a collective leadership model, but also shows the risk of politicization when decision-making spreads too thin.

Table: Key Changes under the 26th Amendment

Conclusion

Justice Muhammad Ali Mazhar’s remark — “two branches of one tree” — may sound poetic, but it encapsulates Pakistan’s judicial paradox. The Constitutional and Regular Benches are indeed parts of a single institution, yet the tension between them reveals how fragile that unity can be. 26th Amendment Case Justice Mazhar Defends Judicial

The 26th Amendment Case is not just about technical changes in law; it’s a test of judicial integrity, institutional cohesion, and constitutional balance. Whether the judiciary emerges stronger or divided will depend on how it interprets its own roots — and how it protects them from political storms. 26th Amendment Case Justice Mazhar Defends Judicial

For a detailed timeline of the 26th Amendment and its impact on judicial independence, visit ConstitutionNet’s Analysis of Pakistan’s Judicial Reforms.