Lawyers Question Transparency of Judicial Appointments, Say FCC’s Credibility Already Eroded
Minister of Justice, Azam Nazeer Tarar. PHOTO: ARCHIVE
ISLAMABAD:
Responding to a critical Amnesty International report, Justice 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 adjustment, has consolidated the federation rather than undermining judicial independence.
The Justice Minister made these remarks while attending a ceremony to launch Talat Abbas’s book at the Supreme Court Bar Association (SCBA).
During his speech, Tarar directly referred to the Amnesty International report, which describes 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, particularly undermining the independence of the judiciary, the right to a fair trial and to justice and accountability,” the report says.
Rejecting these claims, Tarar said the creation of the FCC was envisaged in the Charter of Democracy (COD) signed by the two major political parties, the Pakistan Muslim League-Nawaz (PML-N) and the Pakistan People’s Party (PPP).
He added that critics often ignore Pakistan’s past, when, he says, the Supreme Court abused public interest jurisdiction under Article 184(3) of the Constitution and prime ministers were sent home by 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 establish the FCC as a positive and necessary step.
However, senior members of the legal community believe that the Minister of Justice did not address the main concerns raised by Amnesty International about the way the FCC was formed.
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 going through 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 remain over future appointments given the composition of the JCP after the 26th constitutional amendment, where members of parliament outnumber judicial members and can therefore dictate future appointments.
It quotes the UN Special Rapporteur on the independence of judges and lawyers, who observed that “there is a risk of court capture when laws establish that political powers must participate in the selection of judges to hear certain politically sensitive cases.”
Amnesty also noted that the president has the authority to determine the number of FCC judges, allowing the ruling government to alter the composition of the court if certain judges are deemed unfavorable.
The report adds that these fears deepened when the chief justice and the first four FCC judges were sworn in on November 14, less than 24 hours after the amendment became law.
It claims that no criteria or justification was provided for the appointments, and notes that the UN Basic Principles on the Independence of the Judiciary require that judicial selection processes “protect against judicial appointments for improper reasons.”
Lawyers argue that the selection of judges perceived as aligned with the executive has seriously eroded the credibility of the newly created FCC.
Justice Aminuddin Khan was appointed FCC Chief Justice just two weeks before his retirement. Last year, while heading the Constitutional Chamber, he handed down rulings that provided significant relief to the federal government by upholding the trial of civilians in military courts and overturning a Supreme Court ruling that had given the PTI the right to reserved seats.
Another FCC judge, Hasan Azhar Rizvi, also signed the ruling supporting civilian trials in military courts. It also reversed its previous opinion in the case of reserved seats.
Justices Aamer Farooq and Ali Baqar Najfi also signed the judgment on reserved seats, which finally allowed the ruling parties to obtain a two-thirds majority in the National Assembly.
Legal experts have further questioned why the executive ignored the senior judges of the Sindh High Court and selected Justice KK Agha for appointment to the FCC, without considering the Supreme Court judges belonging to Sindh.
Similarly, the Prime Minister did not consider three judges of the Balochistan High Court and instead selected the then Chief Justice of the Balochistan High Court for appointment as a member of the FCC.
The sitting judges of the SC and the Peshawar High Court were also ignored, and Justice Arshad Hussain Shah was selected for the FCC instead.
Lawyers insist that the appointment process requires transparency to restore confidence in the new constitutional court.
Lawyer Asad Rahim Khan said Pakistanis do not need foreign organizations to explain what is already clear at the national level.
“Pakistanis do not need foreign agencies to tell them what is more than clear in their own internal consensus: the changes in the judiciary through the 26th and 27th amendments 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.
Referring to historical precedent, he added: “As for the verdict of history, has a single amendment seeking to subordinate 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 vilified by the historian. Since the twenty-seventh has inflicted more damage on the judiciary than all those amendments put together, we can to be quite confident in what history will say.
