What are the pros and cons of the newly proposed constitutional court?

After the coalition government failed to pass the much-discussed secret constitutional amendments last month, lawyers, journalists, and social media have been busy debating what the proposed amendments mean.

Pakistan Peoples Party (PPP) Chairman Bilawal Bhutto has aggressively campaigned for judicial reforms and the establishment of a new constitutional court.

On the other hand, many lawyers have called the proposed judicial reforms a travesty of justice, terming them draconian. Pakistan Tehreek-e-Insaf (PTI) has strongly condemned the amendments, alleging that the government wants to extend the tenure of CJP Qazi Faez Isa, who is set to retire on October 25 this year.

In order to better understand the two sides, we’ve listed pros and cons of the proposed new constitutional court based on the analysis of legal experts: Advocate Hafiz Ahsaan Ahmad Khokhar, Advocate Salahuddin Ahmad, Barrister Asad Rahim Khan.

Pros of FCC

The proposed Federal Constitutional Court could ease up the burden on the Supreme Court. The apex court is swamped with pending cases, which means justice is delayed for the common citizens.

Pakistan’s Supreme Court and high courts have become overburdened with increasing ‘constitutional cases’, according to the coalition government.

There is a lower chance of a constitutional crisis as FCC rulings would be the final authority according to the leaked amendments bill.

The proposed constitutional court could help ease political tensions as it would be the impartial arbiter in any federal-provincial disputes.

In August 2023, the Civil Society of Pakistan published a report in which it expressed the need to establish a federal constitutional court in Pakistan.

Cons

Salahuddin argues that most backlogs in pending cases exist in lower courts, i.e. 58,000 pending cases in the Supreme Court, 400,000 cases in the High Courts and around 1.8 million pending cases in the lower courts

The litigation time in the Supreme Court is the shortest as compared to lower courts because it has final authority.

Reforms then, theoretically, should begin in lower courts, but politicians are concerned with reforming the Supreme Court.

Advocate Salahuddin Ahmad argues that under the proposed amendments, the burden of constitutional cases would shift from one court (Supreme Court) to another court (Federal Constitutional Court), which would be meaningless.

If politicisation of the Supreme Court is the issue, then under the proposed amendments, politicians having a greater role in the appointments of judges would only increase this problem.

Transfers of High Court judges, proposed under the constitutional amendments, from province to province would cast serious doubts on impartiality and dispensation of justice.

The First Chief Justice of the proposed FCC would be handpicked by the Prime Minister.

Lawyer and activist Jibran Nasir has claimed that the government is trying to set up its own executive-judicial branch.