Packing of the Superior Courts

The Independence of the judiciary is vital for a just and democratic society, as is the impartiality of judges in making decisions free from external pressures.

It is known that governments interfere with and try to influence judicial decisions through appointments, funding, or other means. This is also done by modifying the laws so the government can have an upper hand, making it easy for them to influence judgments. Such a move is being witnessed in Pakistan, where the laws have been altered and continue to be further modified to pressure the judiciary by appointing chosen judges and controlling judges through the chosen commissions comprising the majority of chosen parliamentarians. This, in fact, hits at the root of Judicial Independence. The Constitutional Courts created by the amendment in the Constitution, where judges are appointed and controlled by the Commission, amount to control by the executive, contrary to all principles of Judicial Independence.

Now we see the consequence of the 26th Amendment, creating the Constitutional Court, where this amendment, itself being unconstitutional, has been challenged. The Constitutional Court chooses to hear cases arising from the said amendment, but the court refuses to hear the challenge to the 26th Amendment itself. The trial of civilians by the military courts has been validated by the Constitutional Court, which is completely against the constitution. One can cite numerous such judgments where the Constitutional Court is acting per the wishes of the government, citing the amendment in the Constitution.

The executive reduces or increases funding to courts to pressure the judiciary. To influence the judges, the Executive increases their pay and benefits out of proportion. Can we say that this amounts to a corrupt practice? It surely would be one factor to dictate. Further assurances given that on retirement, they would be given appointments and positions are another aspect to obtain favours. This practice within the judiciary can undermine public trust and erode its independence. We have noticed the increase in the package of the Judges of the Supreme Court,  especially the substantial increase in the Chief Justice of Pakistan’s pay and pension, and that too at this juncture, when they need the courts to deliver judgments per their wishes.

 The United Nations Congress adopted a resolution that gave the basic principles of independence to the judiciary[4].

“Independence of the judiciary

1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats, or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.
5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.
6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.”

In an article titled ‘The legislative assault on state supreme courts is one of the greatest threats to our system of checks and balances. Authored by Eric H. Holder Jr.[5] Published: September 12, 2023. [Eric H. Holder Jr. served as the 82nd attorney general of the United States] it was said:

“A robust system of checks and balances is the cornerstone of a healthy democracy, and a fully functioning, independent judicial branch is critical to that. At its best, the judiciary operates as a neutral arbiter of the law — an impartial referee. Yes, judges have different approaches to interpreting the law, but all of them must adhere to a set of norms that has governed the judiciary for centuries: evaluating cases in a manner that is consistent with existing law and precedent and protecting the rights of citizens. The judiciary is supposed to be independent — insulated from partisan bias and political influence — and its legitimacy is dependent on the goodwill of the people.

But an alarming pattern is unfolding across the country that threatens not only the independence of state courts but also our democracy.”

The Constitution, prior to the 26th Amendment, in Article 175A, provided for the method of appointing the judges of the Supreme Court of Pakistan, the High Courts, and the Federal Shariat Court. This provision was introduced by the Constitution (Eighteenth Amendment) Act 2010 [X of 2010]. This amendment provided that the appointment would be made by a Commission, where the constitution of the Commission for the appointment of the judges of the Supreme Court was a majority of Judges with the Federal Minister for Law and Justice, Attorney General for Pakistan, and a senior Advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council. The Chief Justice was to be the senior-most judge upon the retirement of the previous Chief Justice. Similarly, the composition of the Commission for the appointment of the judges of the High Court was predominantly the same, except for the addition of the Chief Justice of the Province, the Provincial Minister for Law, and an advocate having not less than fifteen years’ practice in the High Court to be nominated by the concerned Bar Council. Similar provisions were for the appointment of the judges and the Chief Justice of the Islamabad High Court.

The 18th Amendment was introduced, saying that the appointments would take place after due scrutiny and on merit to protect the judiciary’s independence. In the case of Munir Hussain Bhatti, Advocate and Ors. Versus Federation of Pakistan[6], the Supreme Court struck down the opinion of the Parliamentary Committee, saying that the Parliamentary Committee constituted under Article 175A of the Constitution could not be considered as a part of the legislature and that the said Committee did not have any semblance or relevance or any form of parliamentary attribute. Further, the Committee was to act under the Constitutional mandate provided under Article 4 of the Constitution. It had no immunity from judicial scrutiny and could not strike down decisions of the Judicial Commission, as the judiciary is independent and cannot be interfered with by the Parliament or the government. The review[7] against the order filed by the Federation of Pakistan was dismissed for the same reason.

With the 26th Constitutional Amendment, the judicial system’s independence was taken away, ignoring the aforesaid judgments of the Hon’ble Supreme Court, where it was categorically held that the independence of the Judiciary is paramount. In violation of the judgments, the Parliament made many significant institutional changes in the entire structure, the method of appointment of judges, and the functioning of Pakistan’s judicial system as a whole, emphasizing the capture of the Supreme Court and High Courts. No judicial review was available after the said amendments. It is clear that the amendments were aimed at “Packing of the Superior Courts” for absolute control over those courts.

Santiago Canton[8], ICJ’s Secretary General, said post the changes in the Constitution that: “These changes bring an extraordinary level of political influence over the process of judicial appointments and the judiciary’s own administration.” He further said, “They erode the judiciary’s capacity to independently and effectively function as a check against excesses by other branches of the State and protect human rights.”

The Senate passed the 26th Constitutional Amendment within hours, without any real debate, following its introduction before it in the evening of Sunday, 20 October 2024. It was then passed by the National Assembly without any substantial discussion, with minor amendments on Monday, 21 October morning. The assent of the President was immediately given and published in the Gazette. The amendments in haste clearly showed the ill intention of the government and the Parliament. In fact, the draft amendments were kept secret, and there were no public consultations on the proposals before they were introduced and passed by the Parliament. Canton added, “It is alarming that a Constitutional Amendment of great significance and public interest was passed in such a secretive manner and in less than 24 hours,”. Further, “The core principle of the rule of law and the separation of powers according to which citizens and their freely chosen representatives have the right to participate in the legislative process culminating in the adoption and enactment of laws was flagrantly violated in this case.”

In addition to nominating judges for appointment, the JCP has been given the power to decide and nominate “constitutional benches” within the Supreme Court and High Courts.

The ICJ was particularly concerned about how the multiple amendments were passed at lightning speed, especially the changes relating to the judicial system’s independence. It was clear that the said amendments undoubtedly seriously undermined the independence of the judiciary by subjugating and subjecting the entire superior judiciary to executive and Parliamentary control, thus knocking out the most important pillar of the State.

Prior to the amendment as detailed above, the Judicial Commission of Pakistan (JCP), which was tasked with nominating judges for the Supreme Court and High Courts for appointment, was altered. The 26th Constitutional Amendment changed Article 175A in totality, where the composition of the JCP was changed, to reduce the majority of the judges, to include two members of the National Assembly, two members of the Senate, and one woman or non-Muslim member, to be nominated by the Speaker of the National Assembly. The Law Minister, the Attorney General of Pakistan, and a representative of the Bar were already members of the JCP.

The changes by the 26th Amendment, in the composition of JCP, were clearly aimed at direct political influence in all matters, namely, the appointment of politically motivated persons to become judges, merit was gone, and the appointment of judges became a political action of the choice of political parties to have absolute control over it. It will be seen that for the appointment of judges of the Supreme Court, only five out of 13 JCP’s members are judges, the rest are members of political parties. In fact, the senior judge of the Constitutional Bench, yielding the most power and sitting in the Judicial Commission, is also politically appointed. A further twist is that the aspect of merit was also taken away, and the appointment of the judges would be through casting a vote, without considering merit, quality, or background checks.

In addition to nominating judges for appointment, the JCP has been given the power to decide and nominate “constitutional benches” within the Supreme Court and High Courts. These Constitutional Benches supersede the Chief Justice of Pakistan. The JCP would decide these benches’ exclusive jurisdiction over matters involving the interpretation of the Constitution and the enforcement of fundamental rights.

Such unusual power, violating the independence of the judiciary, now allows the JCP (a body subject to direct political influence) in its decision-making, thus creating tailor-made judicial benches to hear specific cases, including cases of political significance. The amazing part is that the challenge to the 26th Amendment is also heard by the Constitutional Bench, the bench and the judges constituting the bench being beneficiaries of this amendment. Impartiality and independence are no more.

The original text of Article 175A Clause (3) provided that, notwithstanding all other provisions of Article 175A, the President would appoint the senior-most judge as the Chief Justice of Pakistan. The Executive or the Parliament had no say in this appointment. This is the hallmark of the Constitution: to keep the judicial institutions independent. The 26th Constitutional Amendment amended Article 175A of the Constitution in totality, especially giving a “Special Parliamentary Committee” (SPC) consisting of eight members of the National Assembly and members of the Senate the power to nominate the CJP from amongst the three most senior Supreme Court judges. Such is the outrageous authority and power of this SPC, where the Parliamentary nominees will appoint the Chief Justice. The control is with the Executive. This intrusion in the judiciary destroys judicial independence. The 26th Constitutional Amendment does not provide any grounds, criteria, or reason for the SPC to nominate the CJP, and that too in camera.

One is aware that there could be judges of the Superior Courts who are inefficient, such that they may not be able to deliver what is required of the judges of the Superior Courts. This was always present in Article 209 Clause (5)(a), however, under the 26th Amendment, Clause 5(b) it was introduced that the Judicial Commission would determine the efficiency of a Judge and refer the findings to the Supreme Judicial Council after one opportunity is given to the said judge, and then finally determine that the judge is inefficient. Amazing hit at the judicial independence. The Commission is a political body, now gauging the judges. Article 209 provides information from “Any Source”, so the SJC can proceed. The question is, why was this provision incorporated in Article 175A(19)? Naturally, the political entities, having the judges appointed, would want the said judge to act per their wishes. Otherwise, this avenue is open to them - a sword hanging over the judge’s head.

The amendments directly violate Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right to equality before courts and tribunals and to a fair and public hearing by a competent, independent, and impartial tribunal established by law. Article 10A of Pakistan’s Constitution also recognizes the right to a fair trial.

The UN Human Rights Committee, an independent body of experts mandated by the ICCPR to interpret and apply its provisions, has authoritatively held that such a right is “an absolute right that is not subject to any exception” and a “situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal.”

“The ICJ understands that some reforms to the existing judicial system may have been needed to make the courts more efficient and accountable, and the judicial appointment process more transparent and inclusive,” said Santiago Canton.

The UN Human Rights Committee has stressed that to comply with their obligations under Article 14 of the ICCPR, “States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them.”

The UN Human Rights Committee and the UN Special Rapporteur on the independence of judges and lawyers have repeatedly emphasized that judicial appointing bodies should be independent from the Executive, composed mainly (if not solely) of judges and members of the legal profession; they should apply transparent procedures.

The UN Human Rights Committee has also authoritatively held that judges should be removed only on “serious grounds of misconduct or incompetence”.

The UN Basic Principles on the Independence of the Judiciary (UN Basic Principles) provide, among other things, that “the assignment of cases to judges within the court to which they belong is an internal matter of judicial administration”. They also provide: “All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct,” and that judges may only be removed for “incapacity or behavior that renders them unfit to discharge their duties.”

The 26th Amendment violates all norms and the principles set forth by the international organisations. Therefore, the readers now need to decide whether our judiciary is independent.

References
[1] The Cambridge Handbook of Constitutional Theory, Edited by Richard Bellamy and Jeff King. First Published 2025.
[2] The Cambridge Handbook of Constitutional Theory, Edited by Richard Bellamy and Jeff King. First Published 2025.
[3] The Cambridge Handbook of Constitutional Theory, Edited by Richard Bellamy and Jeff King. First Published 2025.
[4] The Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and was adopted on 06 September 1985.
[5] Eric H. Holder Jr., State Judges Must Guard Their Independence, S C R (Sep. 12, 2023), https://statecourtreport.org/our-work/analysis-opinion/state-judges-must-guard-their-independence.
[6] Reported as PLD 2011 SC 407.
[7] Federation of Pakistan versus Munir Hussain Bhatti and ors. Reported as PLD 2011 SC 752.
[8] Santiago Canton, Secretary General of International Commission of Jurist (ICJ) appointed on March 1st 2023. Pakistan: 26th Constitutional amendment is a blow to the independence of the judiciary | ICJ.