The independence of the judiciary is under attack! The International Commission of Jurists (ICJ) has issued a stark warning regarding Pakistan's 27th Constitutional Amendment, calling it a serious threat to the rule of law. Passed by Parliament and signed into law, this amendment has raised significant concerns about its impact on the judicial system. But what exactly is the ICJ worried about? Let's dive in.
The ICJ, led by Secretary-General Santiago Canton, believes the changes, coupled with the 26th Amendment from October 2024, are fundamentally altering the judiciary's structure. They fear this will undermine its ability to hold the executive branch accountable and protect citizens' fundamental rights.
One major point of contention is the establishment of the Federal Constitutional Court (FCC) and the criteria for judicial appointments. The ICJ points out that the amendment lacks clear appointment criteria or the requirement to provide reasons for selections, beyond general qualifications. This is a crucial point: International standards demand that the appointing body be independent of the executive branch. The ICJ believes this principle is not upheld in the appointment of the FCC chief justice and its initial judges. They emphasize that transparent procedures and objective criteria are essential for judicial appointments, according to international norms.
Further complicating matters, the ICJ objects to the arrangement where the FCC chief justice and the senior-most FCC judge are members of both the Judicial Commission of Pakistan (JCP) and the Supreme Judicial Council. This, they argue, clashes with the principle of judicial independence.
And this is the part most people miss... The ICJ also criticized the process for selecting the Chief Justice of the Supreme Court and the FCC. The new amendment mirrors the opaque procedure used for the FCC chief justice's selection after the first incumbent retires. The ICJ notes the absence of clear criteria or grounds for the Supreme Parliamentary Committee (SPC) to nominate the Chief Justice, with meetings held behind closed doors.
The composition of the JCP has also been revamped, now including the chief justices of the FCC and Supreme Court, senior judges from each court, and one judge jointly nominated by both chief justices. The remaining members are unchanged. The ICJ views the inclusion of executive appointees and political figures in the JCP as a cause for concern. They warn this allows for "direct political influence" over judicial appointments, as judicial members are now in the minority. For appointments to the Supreme Court and FCC, judges only constitute 5 out of 13 members of the JCP.
The ICJ also raised concerns about amendments to Article 200 of the Constitution, which governs the transfer of High Court judges. The amendment fails to provide specific criteria or a transparent mechanism for transfer decisions, potentially leading to arbitrary or punitive actions rather than those in the public interest.
Referring to international standards, the ICJ questioned the rationale behind removing judges who refuse transfers, asking how such refusal could constitute "serious misconduct." They reiterate that judges should only be removed for serious misconduct or incompetence.
But here's where it gets controversial... The ICJ expressed grave concern over the sweeping immunities granted under Articles 248 and 243 through the 27th Amendment. These provisions grant the president lifetime immunity from criminal proceedings and arrest, along with protections from civil suits. Similar immunities are extended to the ranks of Field Marshal, Admiral of the Fleet, and Marshal of the Air Force. The ICJ considers these immunities "contrary to core rule of law principles," violating accountability, access to justice, and equality before the law. They warn that such provisions could enable the unlawful or arbitrary exercise of power without consequences.
What do you think about these changes? Do you agree with the ICJ's concerns, or do you see other perspectives? Share your thoughts in the comments below!
