The International Commission of Jurists (ICJ) on Thursday dubbed the 27th amendment a “flagrant attack on the independence of the judiciary and the rule of law,” warning it will significantly impair the judiciary’s ability to hold the executive accountable and protect fundamental rights.
In a statement, ICJ Secretary General Santiago Canton noted the 26th and 27th amendments combined fundamentally altered the structure of the judiciary, and undermined judicial function. It noted the establishment of the Federal Constitutional Court had effectively rendered the Supreme Court an appellate court in matters that do not involve interpretation of the Constitution.
Additionally, it noted, the first chief justice of the FCC, as well as the first “batch” of judges, would be appointed by the president on advice of the prime minister. Subsequently, FCC judges would be appointed on the recommendation of the Judicial Commission of Pakistan (JCP) and the appointment of the chief justice shall be made by a Special Parliamentary Committee.
The amendment does not provide any criteria on which the appointments will be made and does not require reasons to given for the appointments, noted the ICJ. “International standards provide the appointing body should be separate from and not under the direct control of the executive, a requirement that is clearly not met in the appointment of the CJ of the FCC and the first batch of judges of the FCC,” it said, adding clear procedures and objective criteria for the appointment of judges was also necessary.
It said the appointments were also concerning as the CJ of the FCC and its senior most judge would also be members of the Judicial Commission of Pakistan and the Supreme Judicial Council, hampering the principle of judicial independence.
Further, the ICJ noted, future chief justice of the FCC would be selected by a special parliamentary committee from among the three most senior judges. “The provision gives no grounds or criteria on the basis of which the SPC is to nominate the CJ of the SC or the CJ of the FCC, while also providing that its meetings shall be held in camera,” it noted.
The ICJ also expressed concern over the composition of the JCP, which comprises the FCC CJ, SC CJ, the next senior most judges of the FCC and the SC each, and a judge of the SC or FCC jointly nominated by the CJ of the FCC and CJ of the SC, as well as two MNAs, two senators, one woman or non-Muslim or technocrat member, the law minister, the attorney general, a representative of the Bar
It said the JCP’s initial composition would comprise at least two judicial members—the FCC judges—appointed by the executive. “Furthermore, the JCP’s composition allows for direct political influence over it, as the JCP’s judicial members are a minority,” it added.
On the transfer of judges, the ICJ noted the 27th Amendment fails to provide for any basis on which the JCP would decide when judges should be transferred, adding there is no requirement to establish a mechanism with clearly defined criteria and objectives to guide recommendations for transfer. “This arbitrary system makes it impossible to determine whether transfer might actually be intended to be punitive or retaliatory, rather than for the legitimate purpose of better administration of justice and public interest,” it said.
“The possibility of removal of judges who refuse transfer is also of concern. International standards on the independence of the judiciary provide that judges should be removed only on ‘serious grounds of misconduct or incompetence.’ It is not clear how refusing transfer amounts to serious misconduct,” it added.
The ICJ further criticized the lifetime immunities for the president and the rank of field marshal, describing them as contrary to core rule of law principles including accountability, access to justice, and equality before the law. “No public official should ever be entirely unaccountable, as this effectively allows for the possibility of unlawful or arbitrary exercise of power without consequence,” it warned.
“The ICJ raises serious concern about the grave consequences of the ongoing dismantling of the rule of law and the resulting violations of human rights in Pakistan, and calls upon all responsible executive and judicial officials to only give effect to the amendments in a manner that is compliant with the rule of law,” it added.