Constitutional changes in Pakistan represent a 'structural assault on the independence of the judiciary, with long-term consequences for constitutional governance and the protection of fundamental rights', human rights lawyers have warned. The International Bar Association Human Rights Institute (IBAHRI) yesterday condemned the 27th amendment, which was signed into law this month by President Asif Ali Zardari. The amendment creates a new constitutional court under the control of the executive.
IBAHRI co-chair Mark Stephens said: ‘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 creation of a permanent Federal Constitutional Court (FCC) and the removal of the protections for judges turns Pakistan’s Supreme Court into a pawn of the executive, he said. 'The international community must come together and speak out against these grave infringements on the rule of law.’
Apart from the new court, the amendment empowers the president to transfer court judges on the proposals of the Judicial Commission of Pakistan without requiring the judge’s consent or consultation with the chief justice. Judges who refuse a transfer will face disciplinary proceedings. It also confers lifetime immunity from criminal and civil proceedings for the president and individuals holding the titles of field marshal, admiral of the fleet and marshal of the Air Force.
In Pakistan, the new measure has been criticised by senior judges and opposition lawmakers. Several judges, including Justice Mansoor Ali Shah, the second most senior judge in Pakistan’s Supreme Court, have resigned in protest.
IBAHRI co-chair Hina Jilani said: ‘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 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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