On April 28, we witnessed a judicial disaster, with the roll-out effect of the 26th and 27th Amendments puncturing the judiciary’s independence yet again. Three judges were transferred from the Islamabad High Court to three other high courts. The justification offered was that their transfer would fill vacancies in those high courts, when in reality it would create vacancies in the IHC to appoint like-minded judges in the capital area.

Playing politics with the judicial system is a reprehensible practice. The Judicial Commission of Pakistan (JCP) met to discuss the transfers, because its members called a meeting, in spite of the refusal of the chief justice of Pakistan to convene it. The chief justice had stated that this was an intrusion upon judicial independence. Too little, too late. The meeting was held, and the judges were transferred by a majority vote—a sad day for the judicial system and the people of Pakistan.

The 26th and 27th Amendments were aimed at making the judiciary subservient to the executive. The JCP’s composition was altered so that the executive, through parliament, got a majority. The choice of judges would be made through a vote within the JCP rather than on the basis of merit. That was the starting point; the issue has culminated in the transfer of judges from one high court to another, without their consent.

The creation of the Federal Constitutional Court was the first step; the appointment of the first batch of judges was made under the second and third provisos of Clause (3) of Article 175-A of the Constitution, which provides for the chief justice and other judges of the court to be appointed by the president on the prime minister’s advice. Thus, judges trusted by them are appointed to the FCC. Subsequently, FCC judges are to be appointed under Article 175A, again, where the majority of members in the appointing body are from parliament and the executive.

Additionally, Clause (3) of Article 175A provides for the chief justice of the FCC and the Supreme Court to be appointed by a special parliamentary committee from amongst the three most senior judges of those courts. The definition of the members of the special parliamentary committee is contained in Clause (3B) of Article 175A. All are members of the Majlis-i-Shoora appointed proportionally by the chairman of the Senate and the Speaker of the National Assembly. So, the chief justices of both courts are appointed by parliament and controlled by the executive.

The next nail in the coffin of judicial independence was the amendment that provides for the transfer of judges from one high court to another to be undertaken without their consent, and as may be determined by the JCP, unlike the original provision, under which the transfer of judges could not be made without the consent of the judge concerned.

Article 200 of the Constitution was purposely amended with a view to removing the provision which required the consent of the judge. In effect, the judges are now being equated with civil servants, where the latter sign an undertaking that they would, without objection, serve wherever they are required to serve in Pakistan or abroad. Thus, consent is obtained from them before they are so appointed. A judge who does not accept transfer directives can face disciplinary action. On joining the superior courts, judges believed that no pressure of any kind would be exerted by the executive, and that they would serve in the high courts to which they had been appo­inted under the Constitution. The 26th and 27th Amendments have taken away that judicial independence which had been guaranteed by the Constitution, specifically in the Ob­­jectives Resolution, which is an integral part of the Constitution and the Preamble to the Constitution. It guarantees that ‘the independence of the judiciary shall be fully secured’.

Judicial independence is not secure and is now in the hands of parliament and the executive. If judges do not act as per the dictates of the executive, appropriate action can be taken against them at any stage. It is through this change that judges are now being subjected to extreme pressure. Those judges who do not cede to governmental pressure are removed from their courts and sent to others where they would not be able to, in any way, protect the people from the hawkish eye of the government. It is said that the Constitution protects citizens against the power of the government. However, in this case, the opposite seems to have happened—the Constitution appears to be protecting the government from the people who chose to submit to the country’s basic law in 1973.

-Dawn (Pakistan)/ANN