Legal fraternity warns proposed FCC will shatter judicial independence, hand executive sweeping control
ISLAMABAD:
The proposed 27th Constitutional Amendment is being widely seen as a blow to the independence of the judiciary, with critics warning that the Supreme Court cannot be split down the middle or placed under the thumb of the proposed Federal Constitutional Court (FCC), whose first chief judge would be appointed by the executive.
A former attorney general for Pakistan observed that the FCC “could not have been created in the manner as proposed”, cautioning 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 the chief justice of the FCC.
He warned that the transfer of high court judges without their consent would be open to gross abuse and could be used to target independent-minded judges.
He added that if a senior SC judge refused to serve under a junior judge appointed as the FCC chief justice, they would be deemed retired as a SC judge. According to him, this mid-career, forcible transfer to a questionable court represented a serious erosion of judicial independence.
Legal observers warn that the top court – currently the country’s apex judicial body – would effectively be subordinated to the FCC, whose legitimacy would remain under question on multiple grounds.
Among them is whether the incumbent parliament truly reflects the will of the people.
During hearings on the 26th Amendment case, Advocate Akram Sheikh had told the Constitutional Bench that the amendment was “brought just to avoid the accountability of the February 8 general election”.
Other concerns include the reserved seats case, where the government secured a two-thirds majority in the National Assembly following the judgment, 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 position of FCC Chief Justice: Chief Justice Yahya Afridi, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail and Justice Muhammad Ali Mazhar.
Advocate Abdul Moiz Jaferii described the move as “an illegitimate government tampering with our social contract to allow for 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’s no need for pretence.”
Jaferii further remarked that “the changes in Article 243 are frankly just embarrassing. We have gone from a participatory democracy to the level of Idi Amin and Kim Jong Un, where our constitution is now describing particular individuals as heroes and then granting them special privileges”.
“This amendment is the textual representation of how the North Koreans see off their dear leader whenever he leaves for a trip. Some fall down, crying out of love, others run into the water after his ship.”
Advocate Sameer Khosa said that by creating the FCC, “extending the age of its judges to 68 years, allowing the prime minister to pick its first chief justice, and then that chief justice to pick the rest of his court, the 27th Amendment is a clear attempt at destroying an independent judiciary by packing a court with handpicked and preferred judges.”
He added that “by allowing the transfer of judges without their consent, it seems the desire is to purge the judiciary of unwanted judges”.
Khosa emphasised that “an independent judiciary is not for judges or lawyers, it is for the people of Pakistan to have somewhere to go when power oppresses. Those who trade away the independence of the judiciary for their buildings, extensions, positions, or offices will have betrayed not just their institution, but the people”.
Advocate Nida Khan said the proposed 27th Amendment “raises serious constitutional concerns” as it seeks to alter the judicial hierarchy by creating a new FCC appointed under executive advice, while stripping the SC of its original jurisdiction and limiting high court powers.
“These provisions disrupt the unity of the judiciary, undermine separation of powers, and erode the principle of judicial independence that anchors constitutional democracy,” she said.
“It also centralises command in the defence structure, reducing civilian oversight. Such structural changes go beyond reform; they recast the Constitution itself,” she added. “Any amendment that shifts 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.”
Barrister Asad Rahim Khan warned that “the destruction of the Supreme Court and much of Pakistan’s common law system — decades of precedent, and thousands of judgments — is summed up in Art. 189(2) which says that the proposed FCC is unbound by any past verdict.”
Nida Usman Chaudhry noted that Parliament “is not the only pillar of the state — Judiciary and Executive too are its pillars”.
“The balance of power is being shifted, and the judiciary is being cut to size. This will hurt the nation the most as a whole in the long term and in hindsight,” she said.
“Personal vendettas should never enable people to damage the institutional and constitutional framework. What is being sold in the name of the FCC is anything but constitutional, given how the appointment process continues to be centred around the executive and the legislature.”
She added that “the proposed amendments on compulsory retirement of judges are another way to subjugate judges. The message is clear: either fall in line or retire. By no standards is this a sign of an independent Judicial organ as a third pillar of the state. This will have economic repercussions as well, in addition to implications for civil liberties”.
