Legal fraternity warns proposed that FCC will crush judicial independence, hand control sweeping control
ISLAMABAD:
The proposed 27th constitutional amendment is widely seen as a blow to the independence of the judiciary, with critics warning that the Supreme Court cannot be split down the middle or placed under the thumb of the proposed Federal Constitutional Court (FCC), whose first chief justice would be appointed by the executive branch.
A former attorney general of Pakistan noted that the FCC “could not have been set up in the manner proposed” and warned that such a move would open a Pandora’s box for the country’s constitutional framework.
He noted that the Prime Minister would have the power to select any SC judge as the chief justice of the FCC.
He warned that moving Supreme Court judges without their consent would be open to gross abuse and could be used to target independent judges.
He added that if a senior SC judge refused to serve under a junior judge appointed as the FCC Chief Justice, they would be deemed to have retired as an SC judge. According to him, this forced mid-career transfer to a dubious court represented a serious erosion of judicial independence.
Legal observers warn that the Supreme Court — currently the nation’s highest court — would effectively be subordinate to the FCC, whose legitimacy will remain in doubt for several reasons.
Among them is whether the sitting parliament truly reflects the will of the people.
During hearings on the 26th Amendment case, lawyer Akram Sheikh had told the Constitutional Council that the amendment was “brought just to avoid the accountability of the February 8 general election”.
Other concerns include the reserved seats case, where the government secured a two-thirds majority in the National Assembly after the verdict, and the continued delay in hearing the challenges to the 26th Amendment over the past year.
Reports suggest that four potential candidates are being considered for the post of FCC Chief Justice: Chief Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail and Justice Muhammad Ali Mazhar.
Lawyer Abdul Moiz Jaferii described the move as “an illegitimate government manipulating our social contract to allow its takeover to continue”.
“This time it’s even more shameless because the judges they want to bury are already weakened. So there’s no reason to do it.”
Jaferii further noted that “the amendments to Article 243 are frankly just embarrassing. We have gone from a participatory democracy to the level of Idi Amin and Kim Jong Un, where our constitution now describes certain individuals as heroes and then gives them special privileges”.
“This amendment is the textual representation of how North Koreans view their beloved leader when he leaves for a trip. Some fall down crying with love, others run into the water after his ship.”
Lawyer Sameer Khosa said that by creating the FCC, “extending the age of its judges to 68 so that the prime minister can choose his first chief justice, and then the chief justice to choose the rest of his court, the 27th Amendment is a clear attempt to destroy an independent judiciary by packing a court with handpicked and favored judges.”
He added that “by allowing the transfer of judges without their consent, it appears that the desire is to purge the judiciary of unwanted judges”.
Khosa emphasized that “an independent judiciary is not for judges or lawyers, it is for the people of Pakistan to have a place to go when power oppresses. Those who trade away the independence of the judiciary for their buildings, extensions, posts or offices will have betrayed not only their institution but the people”.
Lawyer Nida Khan said the proposed 27th Amendment “raises serious constitutional concerns” as it seeks to alter the judicial hierarchy by creating a new FCC appointed under executive advice, while stripping the SC of its original jurisdiction and limiting the Supreme Court’s powers.
“These provisions disrupt the unity of the judiciary, undermine the separation of powers and erode the principle of judicial independence which anchors constitutional democracy,” she said.
“It also centralizes command in the defense structure, reducing civilian oversight. Such structural changes go beyond reform; they rework the constitution itself,” she added. “Any amendment that shifts constitutional interpretation from an independent Supreme Court to an executive-influenced forum compromises the rule of law and undermines public confidence in the judicial system.”
Barrister Asad Rahim Khan warned that “the destruction of the Supreme Court and much of Pakistan’s common law system – decades of precedent and thousands of judgments – is summed up in Article 189(2), which states that the proposed FCC is unbound by any previous judgment.”
Nida Usman Chaudhry observed that Parliament “is not the only pillar of the state – judiciary and executive are also its pillars”.
“The balance of power is being shifted and the judiciary is being cut. This will hurt the nation as a whole most in the long term and in hindsight,” she said.
“Personal vendettas should never allow people to damage the institutional and constitutional framework. What is being peddled in the FCC’s name is anything but constitutional given how the appointment process remains centered around the executive and legislative branches.”
She added that “the proposed amendments on mandatory retirement of judges is another way of subjugating judges. The message is clear: either fall in line or retire. In no way is this indicative of an independent judiciary as a third pillar of the state. This will also have economic consequences, in addition to implications for civil liberties”.
