The 27th amendment to the Constitution of Pakistan, passed today by Pakistan’s Parliament, is a flagrant attack on the independence of the judiciary and the rule of law, said the International Commission of Jurists (ICJ)
“The changes made to the judicial system in the 27th amendment are alarming,” said Santiago Canton, ICJ’s Secretary-General. “They will significantly impair the judiciary’s ability to hold the executive accountable and protect the fundamental human rights of the people of Pakistan.”
Together with the 26th amendment, passed only a year ago in October 2024, the amendment fundamentally alters the structure of the judiciary and undermines the judicial function in various ways.
The ICJ is particularly concerned about the following changes introduced by the 27th amendment:
- Establishment of a Federal Constitutional Court
The most fundamental change brought by the 27th amendment is the establishment of new Federal Constitutional Court (FCC) with sweeping powers to exercise many of the functions previously in the jurisdiction of the Supreme Court of Pakistan.
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 FCC will also have the power to call for the record of any case that may involve a substantial question of law related to the interpretation of the Constitution of Pakistan, and make orders in the case. The FCC will also hear appeals as provided by any act of parliament, as well as appeals from the High Courts involving a substantial question of law related to the interpretation of the Constitution of Pakistan.
Any cases or petitions pending before any other court that fall under the FCC’s jurisdiction stand transferred to the FCC.
The FCC’s judgments, in so far as they decide a question of law, will be binding on all courts, including the Supreme Court.
Before the amendment, the Supreme Court of Pakistan exercised the functions that have now been given to the FCC. Following the amendment, the Supreme Court will now effectively be an appellate court only in matters that do not involve interpretation of the Constitution of Pakistan.
- Appointment of the Chief Justice of the FCC and the first batch of judges to the FCC
The 27th amendment provides that the President on the advice of the Prime Minster shall appoint the Chief Justice of the FCC from serving Supreme Court judges.
While the precise number of judges on the FCC is to be fixed later by parliament, the amendment provides that the first “batch” of judges to the FCC shall be appointed by the President on the advice of the Prime Minister in consultation with the CJ of the FCC. Until Parliament determines the number of judges for the FCC, the President may fix the number of judges.
After the first CJ of the FCC and the first “batch” of judges are appointed, the appointments of FCC judges shall be made on the recommendation of the Judicial Commission of Pakistan (JCP) and the appointment of the Chief Justice of the FCC 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, apart from general qualifications necessary to be considered a judge of the FCC.
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. Under international standards, there must also be clear procedures and objective criteria for the appointment of judges.
The appointments are also of concern as the CJ of the FCC and the senior most judge of the FCC will also be members of the Judicial Commission of Pakistan – the body responsible for judicial appointments – and the Supreme Judicial Council – the body responsible for judicial accountability, an arrangement inconsistent with the principle of judicial independence.
- Appointment of the Chief Justice of the Supreme Court and the Federal Constitutional Court
Prior to the 26th amendment, the most senior judge of the Supreme Court was appointed the Chief Justice of Pakistan. The Executive or the Parliament appropriately had no say in this appointment. The 26th Constitutional amendment amended the Constitution to give this authority to a political body, namely a “Special Parliamentary Committee” (SPC), consisting of eight members of the National Assembly and four members of the Senate. The SPC was empowered to nominate the Chief Justice of Pakistan from among the three most senior Supreme Court judges.
The 27th amendment prescribes the same method for the appointment of the Chief Justice of the FCC after the first CJ of the FCC retires.
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.
- The composition of the Judicial Commission of Pakistan
The Judicial Commission of Pakistan (JCP) nominates judges for the Supreme Court, High Courts, and now the FCC, for appointment. Before the 26th Constitutional amendment, the JCP comprised a majority of judges. The amendment changed the composition of the JCP to also include two members of the National Assembly, two members of the Senate and one woman or non-Muslim member, to be nominated by the Speaker of the National Assembly. The Law Minister, the Attorney General of Pakistan, and a representative of the Bar were already members of the JCP and remained so.
The 27th amendment changes the judicial members of the JCP. They now include: CJ of the FCC, CJ of the SC, 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. The other members remain the same.
These JCP’s composition remains a concern, especially as at least two of to judicial members – the CJ of the FCC and a judge of the FCC – will initially be executive appointments. Furthermore, the JCP’s composition allows for direct political influence over it, as the JCP’s judicial members are a minority. For the appointment of Supreme Court and FCC judges, for example, only five out of 13 JCP’s members are required to be judges (namely, the Chief Justice of FCC, the most senior judge of the FCC, the CJ of the SC, the senior most judge of the SC, and a judge of the SC or FCC jointly nominated by the CJ of the FCC and CJ of the SC).
- Transfer of judges of High Courts
The 27th amendment fundamentally alters Article 200 of the Constitution of Pakistan, 1973, which relates to transfer of judges of the High Courts. It gives the Judicial Commission of Pakistan (JCP) – the body responsible for judicial appointments – the power to recommend to the President the transfer a judge from one High Court to another and determine the terms and conditions for such a transfer. If judges do not accept, within 30 days they shall be subject to disciplinary proceedings under Article 209 by the Supreme Judicial Council (SJC), a judicial body responsible for inquiring into misconduct. Until the SJC makes a decision on whether the judge’s refusal is misconduct or not, the judge is barred from performing judicial functions.
Before the amendment, the President of Pakistan had the power to transfer judges from one High Court to another in consultation with Chief Justice of Pakistan and the chief justices of the High Courts to and from which the transfer was being made. The consent of judges was necessary for them to be transferred. The requirement of consent has been removed.
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. 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.
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.
- Immunities
The 27th Amendment changes Article 248 of the Constitution of Pakistan to grant the President of Pakistan lifetime immunity from criminal proceedings and arrest, as well as protections against civil proceedings. It provides this immunity will not apply for the duration the President holds a public office after they cease to be the President. Earlier, the President only had such immunity for the time they were in office.
In addition, amendments to Article 243 of the Constitution grant lifelong immunity from criminal proceedings and arrest, as well as protections against civil proceedings to the “honorary” ranks of the Field Marshal, Admiral of the Fleet, and Marshal of the Air Force. Currently, the Chief of the Armed Forces also has the rank of Field Marshal.
Such sweeping and unconditional immunities 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 ICJ raises serious concern about the grave consequences of the on going 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.
Contact:
Santiago Canton, ICJ’s Secretary General, e: santiago.canton@icj.org
