26th Constitutional Amendment a 'blow to judicial independence': ICJ

The International Commission of Jurists (ICJ) has strongly criticised the passage of the 26th Constitutional Amendment, which was approved by both houses of parliament, labelling it a “blow to judicial independence.”

Expressing deep concern, it stated that the amendment represented “a blow to judicial independence, the rule of law, and human rights protection”.

In a statement, Santiago Canton, the ICJ secretary general, warned that the reforms bring an “extraordinary level of political influence over the process of judicial appointments and the judiciary’s own administration".

Canton added that the changes “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 ICJ further criticised the rapidity with which the amendment became law, pointing out that the draft changes were kept secret, with no public consultations held before they were introduced and passed by parliament.

“It is alarming that a Constitutional Amendment of such significance and public interest was passed in such a secretive manner and in less than 24 hours,” Canton said.

He added, “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”.

The ICJ also noted that the amendment “seriously undermines the independence of the judiciary by unduly subjecting it to executive and parliamentary control”.

In particular, the ICJ took issue with changes to the composition of the Judicial Commission of Pakistan (JCP), arguing that the reforms would “allow for direct political influence over it and reduce the JCP’s judicial members to a minority”.

The ICJ warned that giving the JCP the power to form constitutional benches could lead to the creation of “tailor-made judicial benches to hear specific cases,” including politically significant cases, raising concerns that such benches would not be independent or impartial.

The ICJ also voiced concerns over the process for appointing the chief justice of Pakistan, noting that the amendment provides no clear grounds or criteria for the parliamentary committee that will nominate the CJP.

The changes related to the removal of inefficient judges also drew criticism, as the amendment does not define inefficiency or establish any clear criteria for it.

While acknowledging that some reforms may have been necessary to improve the efficiency, accountability, and transparency of the judicial system, the ICJ firmly opposed the new amendments.

Canton emphasised, “These amendments are an attempt to subjugate the judiciary and bring it under the control of the executive, betraying fundamental principles of the rule of law, separation of powers, and the independence of the judiciary".

It is pertinent to note that the amendments have also sparked concerns among legal experts and human rights defenders in Pakistan, who fear that they will compromise the judiciary’s ability to function as an impartial and independent institution.