The International Commission of Jurists (ICJ) on Thursday issued a statement assailing the passage of the 27th Constitutional Amendment, calling it a “flagrant attack” on judicial independence and the rule of law.
Last year, the ICJ similarly derided the 26th Constitutional Amendment being signed into law as a “blow to judicial independence”.
ICJ Secretary-General Santiago Canton was quoted as saying: “The changes made to the judicial system in the 27th Amendment are alarming …They will significantly impair the judiciary’s ability to hold the executive accountable and protect the fundamental human rights of the people of Pakistan.”
The jurists’ body expressed concern over several main points, namely the formation of the Federal Constitutional Court (FCC), the appointment of judges and chief justices to the Supreme Court and the FCC, the composition of the Judicial Commission of Pakistan (JCP), the transfer of high court judges and the immunities granted to the president and the military leadership.
“The FCC will have exclusive jurisdiction to decide disputes between any of Pakistan’s governments, provincial and federal and to adjudicate matters of public interest involving the enforcement of ‘fundamental rights’,” the statement read, adding that it can call for the record of any case and hear appeals if they deal with interpreting the Constitution.
“Before the amendment, the Supreme Court of Pakistan exercised the functions that have now been given to the FCC,” the statement read. “Following the amendment, the Supreme Court will now effectively be an appellate court only in matters that do not involve the interpretation of the Constitution of Pakistan.”
The ICJ further noted that the first batch of FCC judges would be appointed by the president on the prime minister’s advice, with future judges being appointed on the recommendation of the JCP, while the chief justice would be appointed 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 [be] given for the appointments, apart from general qualifications necessary to be considered a judge of the FCC,” the statement read.
“The appointments are also of concern as the [chief justice] of the FCC and the senior-most judge of the FCC will also be members of the Judicial Commission of Pakistan … and the Supreme Judicial Council,” it highlighted.
The ICJ noted that amendments to Article 200 (transfer of high court judges) allow the JCP to recommend that the president transfer a judge from one high court to another, with the judge in question forced to accept the transfer within 30 days, lest they be barred from judicial duties.
“Article 200 fails to provide for any basis on which the JCP will decide when judges should be transferred and there is no requirement to establish a mechanism with clearly defined criteria and objectives to guide recommendations for transfer,” the ICJ said.
“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.”
With regards to lifetime immunity granted to the president, the field marshal, marshal of the air force and admiral of the fleet under Articles 243 and 248, the ICJ said the amendments are “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,” the statement read.
