IBAHRI Co-Chair Mark Stephens CBE commented: ‘The IBAHRI strongly condemns the amendments made to Pakistan’s Constitution and urges the country’s government to withdraw immediately those provisions of the 27th Amendment that undermine judicial independence, weaken constitutional checks and balances and elevate state officials beyond the reach of the law. Furthermore, we call on Pakistan to fulfil its international human rights obligations under the International Covenant on Civil and Political Rights [ICCPR].’
Mr Stephens added: ‘This Amendment acts as a comprehensive legislative strategy designed to subordinate the judiciary, institutionalise political control and place above the law the President and highest-ranking military. The democratic ideal of the separation of powers has been replaced with the institutionalisation of military dominance. Exceedingly worrying is the creation of a permanent Federal Constitutional Court [FCC] and the removal of the protections for judges. Pakistan’s Supreme Court has been turned into a pawn of the Executive. The international community must come together and speak out against these grave infringements on the rule of law.’
Amendment restructures judiciary and centralises executive control
At the core of the 27th Amendment is the creation of a permanent FCC under the newly inserted Part VII of Pakistan’s Constitution. This court is granted exclusive jurisdiction over national and provincial disputes; a power that previously lay with the Supreme Court of Pakistan. In effect, the restructuring relegates the Supreme Court of Pakistan to an appellate body, stripping it of key constitutional powers.
The amendment also introduces sweeping changes to the appointments and transfers of judges under Articles 199 and 200, empowering the President to transfer high court judges on the proposals of the Judicial Commission of Pakistan (JCP) without requiring the judge’s consent or consultation with the Chief Justice, which previously had been requirements for a transfer. Judges who refuse a transfer will face compulsory disciplinary proceedings under Article 209 of Pakistan’s Constitution.
In Pakistan, the contentious new law, which is alleged to have been passed without substantial consultation, has drawn sharp criticism from senior judges, opposition lawmakers and experts as they fear it will severely curtail the judiciary’s ability to maintain checks and balances.
In protest against the amendment, various judges have resigned, including Justice Mansoor Ali Shah, the second most senior judge in Pakistan’s Supreme Court, who denounced the amendment as a ‘political device to weaken and control the judiciary’.
Constitutional entrenchment of military dominance and expansion of immunities
In addition to the weakening of the judiciary, the amendment codifies the current dominance of Pakistan’s military. Under revisions to Article 243, a new position of Chief of Defence Forces is established. This position is to be held by the Army Chief, centralising military command over the air force, army and navy.
Moreover, under Article 248, the amendment confers lifetime immunity from criminal and civil proceedings for the President and individuals holding mutatis mutandis the titles of Field Marshal, Admiral of the Fleet and Marshal of the Air Force. This immunity framework of placing select individuals above legal scrutiny has raised grave human rights concerns among international legal bodies, including the International Commission of Jurists, which has described the wide-ranging changes as a ‘flagrant attack on the independence of the judiciary and the rule of law.’
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IBAHRI Co-Chair Hina Jilani stated: ‘With lifelong immunity from prosecution for Pakistani presidents and some other individuals, the amendment mocks accountability and the principle of equality before the law for all citizens. Also, the systematic judicial harassment of judges by way of forced transfers and the deliberate fragmentation of the authority of the Supreme Court, are part of a calculated effort towards ensuring impunity. The Government of Pakistan must immediately repeal these provisions and restore the integrity of its judiciary to safeguard human rights and the foundation of its democratic future. The highest constitutional court of a country must always remain an independent and final arbiter of law.’
Baroness Helena Kennedy LT KC, the IBAHRI’s Director, said: ‘An independent judiciary is a necessary requirement to ensure the protection and respect of the rule of law, a foundational element of any democratic society. By constitutionally shielding officials of the state from criminal scrutiny, Pakistan fails to ensure accountability and undermines the very framework required to protect human rights. The erosion of judicial independence through the newly established appointment system and the administrative coercion of judges poses a severe threat to the judiciary’s capacity to decide matters “without any restrictions, improper influences, inducements, pressures, threats or interferences,” as per the core requirements of the United Nations Basic Principles on the Independence of the Judiciary.’
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