The independence of superior judiciary is under severe attack by the incumbent government's proposed 'judicial package’ that will come into force through constitutional amendment.

Despite failing on its first attempt, the federal government is determined to bring the constitution amendment in next month. It’s proposed 'judicial package', which has now been unveiled, is under scrutiny by political parties, legal fraternity and media.

The main feature of this proposed judicial package is the Federal Constitutional Court (FCC) that will take away the original jurisdiction of the incumbent Supreme Court. Likewise, it is also being suggested that the jurisdiction of high courts in national security matters will also be curtailed.

Serious doubts have been raised regarding the federal government's proposal for establishment of FCC as the apex court of the country. According to the draft of the proposed constitutional amendment bill, the jurisdiction of the Supreme Court will be curtailed and the FCC will be established in view of the Charter of Democracy signed between PPP's slain chairperson Benazir Bhutto and PML-N chief Nawaz Sharif in May 2006.

A senior government official revealed The Express Tribune that it is PPP, which insisted the government first to establish FCC as per COD. Now PPP Chairman Bilawal Bhotto Zardari is active to get two-thirds majority in parliament for the establishing of FCC.

The FCC will hear cases filed under Article 184, 186 as well as appeals against high court decisions in exercise of jurisdiction under Article 199 of the Constitution. Even references for the dissolution of any political party will be submitted to the FCC under the proposed constitutional amendment.

It has been proposed that the first Chief Justice of the FCC will be appointed by the President, in consultation with the Prime Minister. Other judges will be appointed by the Prime Minister, in consultation with the FCC Chief Justice. For the initial appointments of judges to the FCC, the President will make the appointments in consultation with the FCC Chief Justice. Subsequently, the appointment of the FCC Chief Justice will be made by a National Assembly committee, consisting of eight members nominated by the Speaker of the National Assembly. The number of FCC judges will be determined by an act of parliament.

The proposed amendment also stipulates that a high court judge with at least five years of experience or a lawyer with 15 years of practice may be considered for appointment as an FCC judge – the nominee should not hold any foreign nationality and should not have served or be serving as a Supreme Court judge. The retirement age of an FCC judge will be 68 years. The term of FCC CJ will be three years unless he or she reaches the age of 68 years before that.

It has also been proposed that the FCC chief justice be made the chairman of Judicial Commission of Pakistan (JCP) and that the two senior most judges of the FCC be made part of it as well.

Legal opinion

Former Sindh High Court Bar Association (SHCBA) president Salahuddin Ahmed said that the merged judicial commission will only play a role in subsequent appointments to the constitutional court — after the first constitutional court is duly filled. “Conveniently, this merged commission will have 13 members — including six of the incumbent (hand-picked) appointees to the constitutional court, the federal law minister and attorney-general and two parliamentarians from the treasury benches (making a comfortable majority of 10)", he added.

A former top law officer said curtailing the jurisdiction of the Supreme Court will be a violation of basic structure of the Constitution. He wondered how the executive could appoint the chief justice of the proposed apex court of the country, adding that the government wants to control the judiciary for the next three years.

Another lawyer said for the first time in 77 years the country’s ‘powerful quarters’ have found a permanent solution for ensuring that cases of their interest are heard by ‘handpicked judges’: "It has happened because for the first time in 77 years, judges have asserted their independence though the SC instead of standing up for them. Why should there be any independent judge in the high court?" he questioned.

In a nutshell, the amendment aims to render the Supreme Court a subordinate institution to a new federal constitutional court, the first chief of which is to be picked by the executive instead of through any order of seniority or by way of a judicial commission.

Abdul Moiz Jaferii advocate said that the new amendment seeks to make this united body with equal representation to parliament. Critically, it allows for the commission to not only pick judges, but also to continuously review the performance of high court judges who can be reprimanded for inefficiency.

Added to this now is the removal of a high court judge on the basis inefficiency as well as the ability to transfer a high court judge from the jurisdiction of his or her permanent seat without their consent. “These are both tools in the hands of the executive designed to keep a continuous check upon an independent judge"

Jaferii states that the amendments proposed basically render the Supreme Court incompetent to adjudicate on matters of constitutional importance. With the head of the FCC pickable by the executive out of the top three judges present there, it also renders the new apex court subordinate to the executive and hence destroys the concept of separation of powers.

"In common law jurisdictions such as Pakistan, the USA, the UK, Australia, India, Sri Lanka, Bangladesh or anywhere else which has been part of the commonwealth, superior courts perform the merged functions of constitutional courts and regular civil and criminal work. This is because the three cannot and need not be separated in a judicial system which works on binding precedent and common law principle of stare decisis. It is for civil law jurisdictions where there is no concept of precedent and where the judiciary functions as an inquisitorial institution with powers of magistracy that constitutional courts need to be separate to ensure a consistent legal backbone for the country. And to act as a check upon civil law processes"

Jaferii states that there is not a single common law based country that has separate constitutional courts. There is not a single country in the world that has a hybrid model of constitutional bifurcation at the appellate level whilst the courts of first instance are not thus bifurcated.

On important constitutional matters the parliament has already legislated; and such matters are to be tabled before a bench of no less than five Supreme Court judges via section 4 of the practice and procedure Act 2023. Such a constitutional bench also exists in India where the court itself addressed this issue of possible bench rigging from within the judiciary by ensuring transparency through plurality in this manner.

“The only reason why this government wants a new court is because it wants to be able to pick new judges. Because the old ones are too independent," said Jaferii.

Rights activist Farieha Aziz said that the judicial package is an attempt to consolidate control in one institution that can be managed by the executive through handpicked individuals. She said the malafide is evident in the manner in which the assembly session was called on a weekend while numbers were being garnered through backdoor meetings and brute force.

"To say the bill in circulation is the incorrect version only points to the lack of disclosure and secrecy by the government and its allies. Had they mustered the numbers we would have seen passage of the bill. Right now the narrative for the FCC is being built linking it to the charter of democracy though it has been pointed out the proposal currently being floated and the one in the CoD are vastly different.”

According to Aziz, playing number games in parliament does not amount to parliamentary supremacy. “It is a disingenuous way to prevent disclosure and debate on matters that impact citizens,” she said. At present there is a divide within the legal fraternity and civil society due to political polarisation and vested interests. “Clarity is required. Anything that is concealed and rushed through should raise red flags. The process is in question as is the content. Throwing in some good provisions is an old tactic to create buy in.”

“There can be no engagement on something that is ill-intended. No justifications can be accepted for a proposal not even shared. This is bigger than one party, one individual,” she added. “It is not about judicial reform but control. Reform requires extensive debate and analysis. Not overnight legislation by playing the numbers game."

Barrister Asad Rahim Khan said that this is not a constitutional package: “It is a neo-PCO, dressed up as an amendment. Its changes were never required; its text was never debated; and its sole goal is subordination. The lawyers who drafted it continue to hide themselves in shame.”

According to him, there is ‘zero logic’ for having a separate constitutional court. “The official reason given is ‘pendency’, because of too much time being spent on constitutional cases. This is wrong on both counts: the vast majority of cases are pending in the lower courts, which not a single would-be reformer has breathed a word about. Second, the time spent on ‘political’ or ‘constitutional cases’ is a small fraction of the total,” he said.

“But these were never meant to be serious reasons. A series of events – bail orders, acquittals, polls in 90 days, military trials being struck down, the IHC judges’ letter, and the reserved seats verdict – has driven the centre to want to destroy the last site of relative independence still left. Yet it will spring back, as it always has," Barrister Asad Rahim Khan added.

Currently, PPP and JUIF are preparing draft on establishing of FCC. Pakistan Bar Council executive committee led by Senator Farooq Naek will also give proposals in first week of October. It is expected that the government will embark on another attempt to pass the constitutional amendment before October 25, which is retirement age of CJP Qazi Faez Isa.