At the core of the country’s new 27th constitutional amendment is the creation of a permanent Federal Constitutional Court (FCC) under the newly inserted Part VII of Pakistan’s Constitution. Signed into law on 13 November by President Asif Ali Zardari, the amendment was passed in less than a week.

This court is granted exclusive jurisdiction over national and provincial disputes, a power that previously lay with the Supreme Court of Pakistan. In effect, the restructuring relegates the Supreme Court of Pakistan to an appellate body, stripping it of key constitutional powers.

The amendment also introduces sweeping changes to the appointments and transfers of judges under Articles 199 and 200, empowering the president to transfer high court judges on the proposals of the Judicial Commission of Pakistan (JCP) without requiring the judge’s consent or consultation with the chief justice, which previously had been requirements for a transfer. Judges who refuse a transfer will face compulsory disciplinary proceedings under Article 209 of the Constitution.

The International Bar Association’s Human Rights Institute (IBAHRI) condemned the move as it warned that the amendment represents a structural assault on the independence of the judiciary, with long-term consequences for constitutional governance and the protection of fundamental rights.

IBAHRI co-chair Mark Stephens CBE said: “This amendment acts as a comprehensive legislative strategy designed to subordinate the judiciary, institutionalise political control and place above the law the president and highest-ranking military. 

“The democratic ideal of the separation of powers has been replaced with the institutionalisation of military dominance. Exceedingly worrying is the creation of a permanent Federal Constitutional Court and the removal of the protections for judges. Pakistan’s Supreme Court has been turned into a pawn of the executive.

“The international community must come together and speak out against these grave infringements on the rule of law.”

In Pakistan, the contentious new law, which is alleged to have been passed without substantial consultation, has drawn sharp criticism from senior judges, opposition lawmakers and experts as they fear it will severely curtail the judiciary’s ability to maintain checks and balances.

In protest against the amendment, various judges have resigned, including Justice Mansoor Ali Shah, the second most senior judge in Pakistan’s Supreme Court, who denounced the amendment as a “political device to weaken and control the judiciary”.

In addition to the weakening of the judiciary, the amendment codifies the current dominance of Pakistan’s military. Under revisions to Article 243, a new position of chief of defence forces is established. This position is to be held by the army chief, centralising military command over the air force, army and navy.

Moreover, under Article 248, the amendment confers lifetime immunity from criminal and civil proceedings for the president and individuals holding the titles of field marshal, admiral of the fleet and marshal of the air force.

This immunity framework of placing select individuals above legal scrutiny has raised grave human rights concerns among international legal bodies, including the International Commission of Jurists, which has described the wide-ranging changes as a “flagrant attack on the independence of the judiciary and the rule of law”.

IBAHRI co-chair Hina Jilani commented: “With lifelong immunity from prosecution for Pakistani presidents and some other individuals, the amendment mocks accountability and the principle of equality before the law for all citizens. Also, the systematic judicial harassment of judges by way of forced transfers and the deliberate fragmentation of the authority of the Supreme Court, are part of a calculated effort towards ensuring impunity.”

Baroness Helena Kennedy LT KC, the IBAHRI’s director, said: “By constitutionally shielding officials of the state from criminal scrutiny, Pakistan fails to ensure accountability and undermines the very framework required to protect human rights.

“The erosion of judicial independence through the newly established appointment system and the administrative coercion of judges poses a severe threat to the judiciary’s capacity to decide matters ‘without any restrictions, improper influences, inducements, pressures, threats or interferences’, as per the core requirements of the United Nations Basic Principles on the Independence of the Judiciary.”