Constitutional Change in Pakistan: Exploring the 26th Amendment
The Constitution of Pakistan, 1973, was adopted by the National Assembly on April 10, 1973, and formally authenticated by the President on April 12, 1973. This Constitution marked a critical step toward revitalizing a nation that had recently endured the trauma of division. It instilled renewed hope among the populace, signaling a move toward long-term stability, free from political and constitutional crises. However, this optimism was short-lived. In July 1977, General Zia-ul-Haq overthrew the government and imposed martial law. Unlike previous military regimes, Zia’s administration chose not to abrogate the Constitution but instead suspended it temporarily. This decision ensured the survival of the 1973 Constitution. Following Zia’s death in 1988, the Constitution was reinstated. Unfortunately, the country soon witnessed another military regime, this time under General Pervez Musharraf, who placed the Constitution in abeyance rather than suspending it outright.
With a lifespan of just over fifty years, the Constitution of Pakistan, 1973, has undergone several amendments, the most notable being the 18th Amendment. Currently, the newly enacted 26th Amendment has become a subject of intense debate among lawyers, parliamentarians, jurists, and the general public.
This blog provides a clear explanation of the changes introduced by the 26th Amendment and how the Constitution stands following the amendment.
The Constitution (Twenty-Sixth Amendment) Act, 2024
Assented to by the President of Pakistan on 21st October 2024, the Act introduces significant changes across fundamental rights, fiscal matters, electoral expenses, judicial appointments, and more. The summary below lists the affected chapters and articles.
Summary of Changes
| S.No | Chapter | Article(s) Amended/Added/Substituted |
|---|---|---|
| 1 | Fundamental Rights | Article 9A |
| 2 | Principles of Policy | Article 38 |
| 3 | The President | Article 48 |
| 4 | Financial Procedure | Article 81 |
| 5 | Provincial Assemblies | Article 111 |
| 6 | The Judicature | Articles 175A, 177, 179, 184, 185, 186A, 187, 191A, 193, 199, 202A |
| 7 | Federal Shariat Court | Articles 203C, 203D |
| 8 | Supreme Judicial Council | Article 209 |
| 9 | Election Commission | Article 215 |
| 10 | Islamic Provisions | Articles 229, 230 |
| 11 | General | Articles 255, 259 |
Fundamental Rights
Article 9A adds a justiciable right to a clean, healthy, and sustainable environment—empowering citizens and aligning Pakistan with global sustainability commitments.
Principles of Policy
Article 38(f) now includes a fixed date to eliminate Riba (usury) before 1st January 2028. As this sits in the Principles of Policy chapter, Article 30 limits court enforceability for non-compliance.
Election Funds
Article 81 designates sums required to organize and conduct elections (National Assembly, Senate, Provincial Assemblies, and local governments) as expenditure charged upon the Federal Consolidated Fund.
Advisors to Chief Minister
Under Article 130(11), a Chief Minister may appoint up to five advisors. The 26th Amendment extends Article 111-style privileges to these advisors, granting them the right to speak and participate in proceedings of the Provincial Assembly or any of its committees.
The Judicial Commission of Pakistan
The Judicial Commission’s role and composition are significantly revised, with dedicated funding from the Federal Consolidated Fund and new responsibilities.
1) Performance Evaluation of High Court Judges
The Commission now evaluates High Court judges’ performance. If inefficiency is found, a remedial period is granted; persistent inefficiency leads to a report to the Supreme Judicial Council. The Commission may frame rules to implement performance standards.
2) Composition of the Judicial Commission (Before vs After)
Before the 26th Amendment — Appointment of Judges of the Supreme Court
| S. | Name | Role |
|---|---|---|
| 1 | Chief Justice of Pakistan | Chairperson |
| 2 | Four most senior Judges of the Supreme Court | Members |
| 3 | Former Chief Justice or Judge of the Supreme Court | Member |
| 4 | Federal Minister for Law and Justice | Member |
| 5 | Attorney General of Pakistan | Member |
| 6 | Senior Advocate of the Supreme Court (nominated by PBC) | Member |
Additional Members (Before) — Appointment of Judges of the High Court
| S. | Name | Role |
|---|---|---|
| 7 | Chief Justice of the High Court | Member |
| 8 | Most senior judge of the High Court | Member |
| 9 | Provincial Minister for Law and Justice (except for IHC) | Member |
| 10 | Advocate nominated by the concerned Bar Council | Member |
After the 26th Amendment — Appointment of Judges of the Supreme Court
| S. | Name | Role |
|---|---|---|
| 1 | Chief Justice of Pakistan | Chairperson |
| 2 | Three most senior Judges of the Supreme Court | Members |
| 3 | Most senior judge of the Constitutional Benches | Member |
| 4 | Federal Minister for Law and Justice | Member |
| 5 | Attorney General of Pakistan | Member |
| 6 | Senior Advocate of the Supreme Court (nominated by PBC; 15 years SC practice) | Member |
| 7 | Two members from Senate and two from National Assembly | Members |
| 8 | A woman or a non-Muslim (non-MP) qualified to be a Senator as Technocrat | Member |
Additional Members (After) — Appointment of Judges of the High Court
| S. | Name | Role |
|---|---|---|
| 9 | Chief Justice of the High Court | Member |
| 10 | Head of the Constitutional Bench of the High Court | Member |
| 11 | Provincial Minister for Law (except for IHC) | Member |
| 12 | Advocate nominated by the concerned Bar Council (15 years HC practice) | Member |
3) Expenditure for the Judicial Commission
Remuneration for the Commission’s officers and staff is now charged upon the Federal Consolidated Fund—reinforcing institutional independence.
Appointment of the Chief Justice of Pakistan
Prior to the 26th Amendment, the senior-most Supreme Court judge became Chief Justice. Now Article 175A prescribes a nomination process via a Special Parliamentary Committee.
Special Parliamentary Committee
A twelve-member committee (8 National Assembly, 4 Senate) nominates the Chief Justice from among the three senior-most Supreme Court judges. The nominee’s name goes to the Prime Minister, who forwards it to the President for appointment.
Procedure (Post-26th Amendment)
| Step | Action | Responsible Authority |
|---|---|---|
| 1 | Constitute Special Parliamentary Committee (8 NA members, 4 Senate) | Parliament |
| 2 | Nominate CJP from the three senior-most SC judges | Special Parliamentary Committee |
| 3 | Forward nominee’s name to the Prime Minister | Special Parliamentary Committee |
| 4 | PM forwards nominee to the President for appointment | Prime Minister |
| 5 | Appoint the Chief Justice of Pakistan | President |
Tenure of the Chief Justice of Pakistan
Following the 26th Amendment, the Chief Justice’s term is limited to three years, unless earlier resignation, removal, or reaching the age of sixty-five occurs first. On completing the three-year term, the Chief Justice retires irrespective of superannuation age.
End of Suo Motu Powers
High Courts are barred from exercising suo motu jurisdiction under Article 199; similarly, the Supreme Court’s suo motu under Article 184(3) is constrained (no orders or declarations on its own motion).
Constitutional Benches
Constitutional Benches are established for the Supreme Court (Article 191A) and High Courts (Article 202A). The SC bench may comprise equal numbers of judges from each province; the senior-most among them leads the bench.
Exclusive SC Bench Jurisdiction:
- Original jurisdiction under Article 184
- Appellate jurisdiction under Article 185(3) where constitutionality or substantial constitutional interpretation is involved
- Advisory jurisdiction under Article 186
Exclusive High Court Bench Jurisdiction under Article 199:
- Writs of Mandamus and Prohibition
- Enforcement of Fundamental Rights
Supreme Judicial Council
The SJC may now remove a High Court judge on grounds of inefficient performance upon receiving a report from the Judicial Commission. Administrative expenses (including remuneration of SJC officers and staff) are charged upon the Federal Consolidated Fund.
Presidential Awards
Under Article 259, new categories include science, technology, medicine, arts, and public service—broadening national recognition for academic and professional distinction.
Fourth Schedule
The Amendment updates the Federal Legislative List to include local taxes, fees, cess, charges, and tolls in cantonment areas—streamlining federal authority to legislate and regulate these obligations for uniform and efficient administration.