Lawyers Question Transparency of Judicial Appointments, Say FCC Credibility Already Eroded
Minister of Justice Azam Nazeer Tarar. PHOTO: FILE
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 plank of the amendment – consolidated the federation rather than undermining judicial independence.
The justice minister made the remarks while attending a book launch ceremony of Talat Abbas at the Supreme Court Bar Association (SCBA).
During his speech, Tarar directly referenced 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.
“This amendment violates international human rights law, including undermining the independence of the judiciary, the right to a fair trial, justice and accountability,” the report said.
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 said the Supreme Court abused the public interest jurisdiction under Article 184 (3) of the Constitution and prime ministers were sent home by judicial order.
Questioning the basis of these criticisms, the law minister argued that a 13-member Federal Constitutional Court, with equitable representation from the four provinces, as well as a judge from Islamabad, promotes unity, transparency and fairness in the judiciary.
Tarar argued that history would ultimately judge the Parliamentary decision to create the FCC as a positive and necessary step.
However, senior legal officials say the Justice Minister has failed to address key 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, thereby bypassing the procedure of the Judicial Commission of Pakistan (JCP) under Article 175A of the Constitution.
The report says these initial appointments raise concerns about direct political interference from the executive branch.
The report further notes that concerns persist over future appointments, given the composition of the JCP after the 26th Constitutional Amendment, where parliamentarians outnumber judges and can therefore dictate future appointments.
He cites 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 the 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 power to determine the number of judges on the FCC, allowing the ruling government to change the composition of the court if certain judges are found unfavorable.
The report added that these apprehensions were reinforced when the FCC’s chief justice and first four judges were sworn in on November 14, less than 24 hours after the amendment became law.
It says no criteria or justification for the appointments were provided, noting that the UN Basic Principles on the Independence of the Judiciary require that judicial selection processes “protect against judicial appointments for improper reasons.”
Lawyers say the selection of judges perceived to be aligned with the executive branch has seriously eroded the credibility of the newly created FCC.
Justice Aminuddin Khan was appointed chief judge of the FCC just two weeks before his retirement. Last year, while heading the Constitutional Bench, he delivered judgments that gave major relief to the federal government by approving the trial of civilians in military courts and overturning an SC decision that granted the PTI the right to reserved seats.
Another FCC judge, Hasan Azhar Rizvi, was also a signatory to the ruling approving civilian trials in military courts. He also reversed his own earlier opinion in the reserved seating case.
Justices Aamer Farooq and Ali Baqar Najfi were also signatories to the judgment on reserved seats, which ultimately allowed the ruling parties to secure a two-thirds majority in the National Assembly.
Legal experts further questioned why the executive ignored senior judges of the Sindh High Court and chose Justice KK Agha for appointment to the FCC, ignoring 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 Chief Justice of the Balochistan High Court for appointment to the FCC.
Sitting judges of the SC and Peshawar High Court were also bypassed, with Justice Arshad Hussain Shah selected for the FCC instead.
Lawyers insist the appointment process requires transparency to restore trust in the new Constitutional Court.
Lawyer 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 clear from their own national consensus: the changes brought to the judiciary by 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 to subordinate the judiciary aged well? Each of them – Bhutto’s fifth to seventh; the eighth of Zia and the seventeenth of Musharraf – has been abrogated by posterity and vilified by the historian. what history will say.
