Lawyers question transparency of judicial appointments, say FCC’s credibility already eroded
Law Minister Azam Nazeer Tarar. PHOTO: FILE
ISLAMABAD:
Reacting to a critical report by Amnesty International, Law Minister Azam Nazeer Tarar on Thursday defended the 27th Amendment, arguing that the creation of the Federal Constitutional Court (FCC) – the central feature of the amendment – has consolidated the federation rather than undermined judicial independence.
The Law Minister made the remarks while attending a book launch ceremony for Talat Abbas at the Supreme Court Bar Association (SCBA).
During his speech, Tarar referred directly to Amnesty International’s report describing the 27th Amendment as an attack on judicial independence, the right to a fair trial and the rule of law.
“The amendment violates international human rights law, and in particular undermines the independence of the judiciary, the right to a fair trial and justice and accountability,” the report said.
Tarar denied these allegations and said that the establishment of the FCC was envisaged in the Charter of Democracy (COD) signed by the two major political parties, Pakistan Muslim League-Nawaz (PML-N) and Pakistan Peoples Party (PPP).
He added that critics often ignore Pakistan’s past when, according to him, the Supreme Court abused the jurisdiction in public interest under Article 184(3) of the Constitution and prime ministers were sent home through court orders.
Questioning the basis of the criticism, the law minister argued that a 13-member federal constitutional court with equal representation from all four provinces, along with a judge from Islamabad, promotes unity, transparency and fairness in the judicial system.
Tarar maintained that history would ultimately judge the parliamentary decision to create the FCC as a positive and necessary step.
However, senior members of the legal fraternity believe that the law minister failed to address the key concerns raised by Amnesty International regarding the manner in which the FCC was set up.
According to the Amnesty report, the first batch of judges of the Federal Constitutional Court and its Chief Justice were appointed by the President on the advice of the Prime Minister, without the Judicial Commission of Pakistan (JCP) process under Article 175A of the Constitution.
The report states that these initial appointments raise concerns about direct political interference by the executive branch.
The report further notes that concerns about future appointments remain, given the composition of the JCP following the 26th constitutional amendment, where MPs outnumber judges and can therefore dictate future appointments.
It quotes the UN Special Rapporteur on the Independence of Judges and Lawyers, who noted that “there is a risk of judicial capture when laws state that political branches must be involved in the selection of judges to hear certain politically sensitive cases”.
Amnesty also pointed out that the president has the authority to determine the number of judges on the FCC, which allows the ruling government to change the composition of the court if certain judges are deemed unfavorable.
The report adds that those concerns were deepened when the chief justice and the first four judges of the FCC were sworn in on November 14, less than 24 hours after the amendment became law.
It states that no criteria or justification was given for the appointments, noting that the UN’s fundamental principles of judicial independence require that judicial selection processes “protect against judicial appointments for improper motives”.
Lawyers argue that the selection of judges perceived to be aligned with the executive branch has seriously eroded the credibility of the fledgling FCC.
Justice Aminuddin Khan was appointed Chief Justice of the FCC just two weeks before his retirement. Last year, while heading the Constitutional Bench, he delivered judgments that brought major relief to the federal government by upholding the trial of civilians in military courts and overturning an SC order that had kept the PTI eligible for reserved seats.
Another FCC judge, Hasan Azhar Rizvi, was also a signatory to the ruling authorizing civilian trials in military courts. He also reversed his own earlier statement in the matter of reserved seats.
Justice Aamer Farooq and Justice Ali Baqar Najfi were also signatories of the judgment on reserved seats, which ultimately enabled the ruling parties to secure a two-thirds majority in the National Assembly.
Legal experts have further questioned why the executive ignored senior judges of the Sindh High Court and selected Justice KK Agha for appointment to the FCC without considering the High Court judges belonging to Sindh.
Similarly, the Prime Minister did not consider three Supreme Court judges from Balochistan and instead chose the then Chief Justice of the Balochistan High Court for appointment to the FCC.
Serving judges of the SC and Peshawar High Court were also passed over, with Justice Arshad Hussain Shah elected to the FCC instead.
Lawyers insist the appointment process needs transparency to restore confidence in the new constitutional court.
Barrister Asad Rahim Khan said Pakistanis do not need foreign organizations to explain what is already clear domestically.
“Pakistanis do not need foreign agencies to tell them what is more than clear from their own domestic consensus: the 26th and 27th amendments to the judiciary have been a complete disaster. Far from benefiting the provinces, the main reason for the creation of the Federal Constitutional Court was to destroy the Supreme Court,” he said.
Citing historical precedent, he added: “As for the verdict of history, has a single amendment seeking to subjugate the judiciary aged well? Each of them – Bhutto’s Fifth to Seventh; Zia’s Eighth and Musharraf’s Seventeenth – have been repealed by posterity and reviled by posterity and reviled. have done more damage to the judiciary than all these amendments put together, we can be quite sure of what history will say.”
