Legal Fraternity Warns FCC Proposal Will Destroy Judicial Independence, Hand Extensive Control to Executive
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 in half or placed under the control of the proposed Federal Constitutional Court (FCC), whose first chief judge would be appointed by the executive.
A former attorney general of Pakistan observed that the FCC “could not have been created in the proposed manner,” warning 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 FCC chief justice.
He warned that transferring High Court judges without their consent would lead to serious abuses and could be used to attack independent-minded judges.
He added that if a senior SC judge refused to serve under a junior judge appointed as FCC chief justice, he would be considered retired as an SC judge. According to him, this forced mid-career transfer to a questionable court represented a serious erosion of judicial independence.
Legal observers warn that the high court, currently the country’s highest judicial body, would be effectively subordinate to the FCC, whose legitimacy would continue to be questioned on multiple grounds.
Among them is whether the sitting parliament truly reflects the will of the people.
During the hearings on the 26th Amendment case, lawyer Akram Sheikh had told the Constitutional Court that the amendment was “introduced only to avoid accountability in the February 8 general elections.”
Other concerns include the reserved seats case, in which the government won a two-thirds majority in the National Assembly following the ruling, and the continued delay in hearing 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 altering our social contract to allow its capture of power to continue.”
“This time it is even more shameless, because the judges they want to bury are already weakened. So there is no need to pretend.”
Jaferii further highlighted that “the changes to Article 243 are frankly shameful. We have gone from a participatory democracy at the level of Idi Amin and Kim Jong Un, where our constitution now describes certain individuals as heroes and then grants them special privileges.”
“This amendment is the textual representation of how North Koreans say goodbye to their beloved leader every time he goes on a trip. Some fall crying with love, others run into the water after his boat.”
Lawyer Sameer Khosa said that by creating the FCC, “expanding the age of its judges to 68, allowing the prime minister to choose his first chief justice, and then that 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 hand-picked and preferred judges.”
He added that “by allowing the transfer of judges without their consent, there appears to be a desire 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 exchange the independence of the judiciary for its buildings, extensions, stalls or offices will have betrayed not only their institution, but the people.”
Advocate Nida Khan said the proposed 27th Amendment “raises serious constitutional concerns” as it seeks to disrupt the judicial hierarchy by creating a new FCC appointed under executive advice, while stripping the SC of its original jurisdiction and limiting the powers of the high court.
“These provisions alter the unity of the judiciary, undermine the separation of powers and erode the principle of judicial independence that underpins constitutional democracy,” he stated.
“It also centralizes command in the defense structure, reducing civilian supervision. These structural changes go beyond the reform; they reformulate the Constitution itself,” he added. “Any amendment that changes constitutional interpretation from an independent Supreme Court to an executive-influenced forum compromises the rule of law and weakens public confidence in the justice system.”
Lawyer Asad Rahim Khan warned that “the destruction of the Supreme Court and much of Pakistan’s common law system (decades of precedents and thousands of judgments) is encapsulated in Article 189(2), which says that the proposed FCC is not subject to any previous verdict.”
Nida Usman Chaudhry noted that Parliament “is not the only pillar of the State: the judiciary and the executive are also its pillars.”
“The balance of power is shifting and the judiciary is shrinking. This will further harm the nation as a whole in the long run and in retrospect,” he said.
“Personal vendettas should never allow people to damage the institutional and constitutional framework. What is being sold in the name of the FCC is anything but constitutional, as the appointment process continues to focus on the executive and the legislature.”
He added that “the proposed amendments on mandatory retirement of judges are another way of subjugating judges. The message is clear: either fall in line or retire. In no way is this a sign of an independent judicial body as the third pillar of the State. This will also have economic repercussions, in addition to implications for civil liberties.”
