ISLAMABAD  -  The 26th Constitutional Amendment (CA) passed by Pakistan’s Parliament is a blow to judicial independence, the rule of law, and human rights protection, said the International Commission of Jurists (ICJ).

The 26th Constitutional Amendment makes significant institutional changes in the structure and functioning of Pakistan’s judicial system, particularly with respect to the Supreme Court and High Courts. “These changes bring an extraordinary level of political influence over the process of judicial appointments and the judiciary’s own administration,” said Santiago Canton, ICJ’s Secretary General.

“They erode the judiciary’s capacity to independently and effectively function as a check against excesses by other branches of the State and protect human rights.”

The Senate passed the 26th Constitutional Amendment within hours following its introduction before it in the evening of Sunday 20 October. It was then introduced in the National Assembly, Parliament’s Lower House, where it was passed early this morning, Monday 21 October. Shorty afterwards, it also received the assent of the President and was officially published in the Gazette.

Draft amendments were kept secret, and there were no public consultations on the proposals before they were introduced in, and passed by, the Parliament.

“It is alarming a Constitutional Amendment of great significance and public interest was passed in such a secretive manner and in less than 24 hours,” added Canton.

“The core principle of the rule of law and the separation of powers according to which citizens and their freely chosen representatives have the right to participate in the legislative process culminating in the adoption and enactment of laws was flagrantly violated in this case.”

The ICJ is particularly concerned about the following changes introduced by the 26th Constitutional Amendment since they seriously undermine the independence of the judiciary by unduly subjecting it to executive and Parliamentary control:

The composition of the Judicial Commission of Pakistan

The Judicial Commission of Pakistan (JCP) nominates judges for the Supreme Court and High Courts for appointment. Before the 26th Constitutional Amendment, the JCP comprised a majority of judges. However, the amendment has 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 remain so.

These changes in the JCP’s composition allow for direct political influence over it, and reduce the JCP’s judicial members to a minority. For the appointment of Supreme Court judges, for example, only five out of 13 JCP’s members are required to be judges (namely, the Chief Justice of Pakistan, the most senior judge of the constitutional benches, and the three most senior Supreme Court judges).

Administrative powers of the Judicial Commission of Pakistan

In addition to nominating judges for appointment, the JCP has been given the power to determine and nominate “constitutional benches” within the Supreme Court and High Courts. These benches shall have exclusive jurisdiction over matters involving interpretation of the Constitution and enforcement of fundamental rights.

Such power allows the JCP – a body subject to direct political influence in its decision-making – to create tailored-made judicial benches to hear specific cases, including cases of political significance. As a result, there is serious concern that these JCP-appointed benches will not be independent and impartial.

The 26th Constitutional Amendment has also made similar amendments to the jurisdiction of High Courts, where matters involving the writ jurisdiction of High Courts have been transferred to “constitutional benches” nominated by the JCP.

The amendments also provide that all pending petitions, appeals and reviews that relate to matters falling under the jurisdiction of “constitutional benches” be transferred to them.

Appointment of the Chief Justice of Pakistan

Prior to the 26th Constitutional Amendment, the most senior judge of the Supreme Court was appointed the Chief Justice of Pakistan (CJP). The Executive or the Parliament had no say in this appointment. The 26th Constitutional Amendment has amended the Constitution to give a “Special Parliamentary Committee” (SPC) consisting of eight members of the National Assembly and four members of the Senate the power to nominate the CJP from among the three most senior Supreme Court judges.

The 26th Constitutional Amendment outlines no grounds or criteria on the basis of which the SPC is to nominate the CJP, while providing that its meetings shall be held in camera.

Removal on the ground of “inefficiency”

The amendments provide the Supreme Judicial Council (SJC) – a judicial body responsible for recommending judges for removal – may recommend judges of the Supreme Court and High Courts for removal if it finds they “may be inefficient in the performance of the duties” of their office. With respect to this, the 26th Constitutional Amendment does not define “inefficiency”, nor does it establish a threshold or criteria for “inefficiency”. Earlier, the grounds for removal by the SJC were incapacity or misconduct.

These amendments directly violate Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right to equality before courts and tribunals and to a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 10A of Pakistan’s Constitution also recognizes the right to a fair trial.

The UN Human Rights Committee, an independent body of experts mandated by the ICCPR to interpret and apply its provisions, has authoritatively held that such a right is “an absolute right that is not subject to any exception” and a “situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal.”

“The ICJ understands that some reforms to the existing judicial system may have been needed to make the courts more efficient and accountable, and the judicial appointment process more transparent and inclusive,” said Santiago Canton.

“But these amendments are an attempt to subjugate the judiciary and bring it under the control of the executive, betraying fundamental principles of the rule of law, separation of powers and the independence of the judiciary.”