On the 26th Amendment to the Constitution of Pakistan

The New York City Bar Association (the “City Bar”) expresses its concerns regarding the recently promulgated 26^th Amendment to the Constitution of Pakistan (the “26^th Amendment”).

Founded over 150 years ago, the City Bar is the oldest lawyers’ association in the Western Hemisphere dedicated to advocating for judicial independence and the rule of law.  Ever since, our mission has promoted these two principles as belonging to no nation or legal or political system.

The 26^th Amendment makes significant institutional changes in the structure and functioning of Pakistan’s judicial system.[1]  By altering constitutional provisions related to the judiciary, including those relating to judicial appointments, formation of benches for hearing of cases and evaluation of judges, the 26^th Amendment has the potential to affect the balance of power among the executive, legislature, and judiciary in a fashion inconsistent with the rule of law.

According to publicly available sources, the impetus for the 26^th Amendment was the desire of the governing political groups to undermine the separation of powers so as to affect the judiciary’s ability to act impartially and without external influence.[2] We therefore encourage the governing forces of Pakistan to reconsider their implementation of the 26^th Amendment.

Well settled international standards obligate governments to guarantee the independence of the judiciary, including their “exclusive authority” to decide cases submitted to the judiciary and, further, expressly require issues involving case assignments to be decided internally.[3] Pakistan should adhere to these norms.

Judicial independence is crucially important, not only for the fair and impartial administration of justice, but also for maintaining public trust in the legal system.   Only a judiciary free from external pressures can ensure that all citizens are treated equally before the law.  Conversely, any perceived erosion of judicial independence inevitably leads to a loss of confidence in the legal process to the detriment of democratic institutions.

The  City Bar encourages the Government of Pakistan to engage in thorough and thoughtful dialogue about the potential long-term consequences of the 26^th Amendment and take appropriate actions to ensure the Amendment and the Constitution as a whole serve to enhance the rule of law, not undermine it.  Pakistan has a long history of battling, with mixed success, for judicial freedom.[4]  We therefore urge the Government to resist the forces of authoritarianism and rethink and revise the 26^th Amendment to ensure that the independence of the judiciary, the rule of law, and the democratic values that Pakistan’s Constitution was designed to protect are not undermined.

We stand ready to offer support in fostering discussions that promote a system of governance that is transparent, fair, and just for all citizens.

Signatories:

Muhammad Usman Faridi, President

Middle Eastern and North African Committee (Robert Michael, Co-Chair, Kabir Hashmi, Secretary)

Task Force on the Independence of Lawyers and Judges (Christopher Pioch, Chair)

Task Force on the Rule of Law (Marcy L. Kahn, Chair)

Council on International Affairs (Peggy McGuinness, Chair)

International Law Committee (Victoria Pochtar, Chair)

About the Association

The mission of the New York City Bar Association, which was founded in 1870 and has 23,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world. www.nycbar.org