Mubashir Nadeem
Debates about judicial reform in Pakistan have been gaining momentum, with calls for greater accountability, transparency, and specialization. One proposal under consideration is the establishment of a Federal Constitutional Court (FCC) modelled after the Federal Shariat Court, aimed at focusing exclusively on constitutional interpretation. This move is seen as a potential solution to alleviate the Supreme Court’s growing burden and ensure a more specialized approach to constitutional matters, offering a promising path towards a more efficient and accountable judiciary.
The establishment of the Federal Shariat Court in 1980 to review laws and ensure compliance with Islamic injunctions has been considered a resounding success. This Court’s specialization in religious legal matters has set a strong precedent for the potential success of a Federal Constitutional Court focused on constitutional law, which could enhance judicial efficiency by interpreting the Constitution, addressing constitutional challenges, and resolving disputes involving fundamental rights. This would allow the Supreme Court to refocus on its original mandate of civil and criminal appeals.
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Currently, the Supreme Court is overwhelmed by a backlog of civil and criminal cases, exacerbated by its increasing involvement in high-profile political matters such as party disputes and electoral conflicts. This shift in focus has impeded the Court’s ability to deliver timely justice for ordinary citizens. The establishment of a Federal Constitutional Court could help restore balance by allowing the Supreme Court to prioritize regular legal matters, while a specialized body handles constitutional cases.
Furthermore, the issue of judicial transfers is crucial in maintaining accountability within the judiciary. Allowing judges to remain stationed in one location for extended periods, especially in politically significant areas, can lead to favouritism and undue influence. Regular transfers can prevent judges from becoming entrenched in local networks, ensuring impartiality and fairness. Arguments against transfers in the name of stability may undermine equal justice, as judges may develop long-term allegiances that conflict with their duty.
An important advantage of establishing a Federal Constitutional Court lies in the potential for enhanced accountability. Currently, higher court judges rule on constitutional matters without specialized training in constitutional law. An FCC, composed of jurists with deep expertise in constitutional theory, would ensure decisions are based on sound legal reasoning, reducing arbitrary rulings and holding judges to a higher standard of legal reasoning, thereby enhancing the public’s trust in the judiciary.
Decentralizing judicial power through the establishment of an FCC would help relieve the overwhelming caseload of the Supreme Court. With the FCC focusing on constitutional interpretation, the Supreme Court could handle broader legal issues more efficiently. This separation would create a more effective judicial system, with each Court operating within its respective sphere.
While there is likely to be political opposition to the creation of an FCC, particularly from parties that rely on the Supreme Court to challenge government actions, the proposal is not aimed at restricting political influence. Instead, it seeks to streamline judicial processes and improve the judiciary’s overall function. Concerns that the FCC would marginalize certain political factions are misplaced, as the goal is to enhance the judiciary’s efficiency for the benefit of all citizens.
However, there are concerns about the drafting of the Constitution (26th Amendment) Bill, which would establish the FCC. Constitutional amendments are significant changes that shape governance for decades, and rushing such an amendment risks unintended consequences that could destabilize the legal system. Comprehensive engagement with legal experts, stakeholders, and broader national discourse is necessary to ensure that the proposed changes truly strengthen justice and democracy.
