Pakistan Bulletin
An up-to-date and informed analyses of key issues of Pakistan.
Redefining Judicial Power: The Federal Constitutional Court
September 2024
The Constitution (Twenty-Sixth Amendment) Bill, 2024 introduces significant judicial reforms in Pakistan, including the establishment of the Federal Constitutional Court (FCC), dedicated to addressing constitutional matters. But the move has led to political tussle in the parliament.
After weeks of speculation, the Constitution (Twenty-Sixth Amendment) Bill, 2024, is finally public. Coming at a time when Pakistan is grappling with political instability and economic challenges, this amendment has stirred strong opinions across the political and legal landscape. The bill introduces over 50 changes to the Constitution, with its primary focus being judicial reform, including the establishment of a new court: the Federal Constitutional Court of Pakistan (FCC). This proposal is set to overhaul the way constitutional matters are adjudicated in the country, with long-term implications for the judiciary’s role in Pakistan.
The FCC is expected to take over matters involving interpretation of the constitution, transferring key responsibilities from the Supreme Court to enhance judicial efficiency and specialization.
The central feature of the amendment is the creation of the FCC, which will act as the primary interpreter of the Constitution. Under the current legal system, the Supreme Court has jurisdiction over constitutional matters, including issues related to fundamental rights, disputes between governments, and other constitutional contentions. The amendment proposes that the FCC assume these responsibilities, effectively transferring key aspects of constitutional adjudication from the Supreme Court to the FCC. The FCC would have original jurisdiction over disputes between federal and provincial governments and cases involving the enforcement of fundamental rights. Additionally, the FCC would handle appellate jurisdiction in cases involving substantial constitutional questions. Appeals to the FCC would be granted under specific conditions, including when a High Court certifies that a case involves significant constitutional interpretation. This change would transform the judicial structure by placing the FCC at the pinnacle of constitutional interpretation. The Supreme Court would continue to handle other types of cases, such as criminal appeals, but its jurisdiction over constitutional matters would be greatly reduced.
The creation of a specialized court dedicated to constitutional matters is seen by many as a way to streamline judicial processes and reduce the caseload currently managed by the Supreme Court. The argument in favor of this change is that it allows the judiciary to function more efficiently, with each court focusing on its specific areas of expertise.
The appointment process for FCC judges has also been one of the most discussed aspects of the amendment. The first Chief Justice of the FCC will be appointed by the President on the advice of the Prime Minister, while subsequent appointments will be managed by the Judicial Commission of Pakistan. This body will include a mix of senior judges, government officials, and parliamentary representatives. However, some concerns have been raised about whether the involvement of the executive and legislature might undermine the independence of the judiciary in the long term.
Judges appointed to the FCC will serve until the age of 68, with Supreme Court judges who are transferred to the FCC serving for a fixed term of three years. These fixed terms are designed to prevent any long-term consolidation of power, though questions remain about whether such frequent turnover in the court’s leadership could create instability. Supporters of the amendment suggest that these terms allow for fresh perspectives and reduce the likelihood of judicial overreach, while critics worry about potential political influence in the appointment and reappointment process.
Another significant aspect of the amendment is the limitation on judicial review of constitutional amendments. Under the new provisions, no constitutional amendment can be challenged in any court, including the FCC, the Supreme Court, or any High Court. This change would prevent courts from striking down amendments based on the Constitution’s “salient features,” such as democracy, the parliamentary system, and the independence of the judiciary.
In past rulings, the Supreme Court has stated that it has the authority to declare constitutional amendments void if they violated these fundamental principles. The new provision effectively removes this judicial oversight, granting greater flexibility to the legislature to pass constitutional amendments without fear of legal challenges.
The reactions to these proposed amendments have been mixed, with strong opinions on both sides. Supporters of the amendment argue that it is necessary to modernize Pakistan’s judicial system and ensure that constitutional cases are handled more efficiently. By establishing the FCC, they believe the judiciary will be better equipped to manage complex constitutional disputes while allowing the Supreme Court to focus on other pressing legal matters. The potential reduction in case backlogs and the specialization of the FCC are seen as key benefits of the amendment.
Concerns over judicial independence arise as the amendment limits judicial review of constitutional changes, potentially shifting power dynamics toward the executive and the legislature.
On the other hand, concerns have been raised about the potential implications for judicial independence. Critics argue that the FCC’s creation, combined with the limits on judicial review, could shift the balance of power in favor of the executive and legislature. The involvement of the executive in judicial appointments and the restriction on courts’ ability to challenge constitutional amendments are seen by some as potential threats to the system of checks and balances that is crucial in a democratic system.
In Pakistan’s current polarized political climate, where the government faces questions of legitimacy, the amendment’s judicial reforms are particularly contentious. The establishment of the FCC, with executive involvement in appointments, risks deepening concerns about political interference in the judiciary. Given the country’s history of executive overreach and the critical role the judiciary has played in safeguarding democratic values, limiting judicial review of constitutional amendments could undermine public trust in democratic institutions. In this context, these changes may be perceived as an attempt to consolidate power rather than genuinely improving judicial efficiency. This raises alarms about the balance of power in Pakistan’s fragile democracy.
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