President Asif Ali Zardari swears in Justice Aminuddin Khan as the President of the Federal Constitutional Court during a ceremony at Aiwan-i-Sadr on Friday. Photo: APP
ISLAMABAD:
A debate has erupted over the functioning of the country’s two highest courts and their effect on litigants – the supposed center of the justice system – as the creation of the Federal Constitutional Court (FCC) has reorganized the caseload and raised questions about where justice now stands and how smoothly it moves.
Official figures show that as of November 13, a total of 56,608 cases were pending before the Supreme Court, of which 22,910 cases were transferred to the newly created FCC. As a result, the number of cases pending before the Supreme Court stood at 33,796 as of December 22.
Currently, 18 judges, including the Chief Justice of Pakistan, perform judicial functions in the SC, against an authorized strength of 34 judges.
A senior government official said that while no proposal to reduce the sanctioned strength of SC judges was being considered, there was a need to review the overall requirement of judges in the apex court after the creation of the FCC.
Separately, seven judges, including the chief justice, currently serve at the FCC, where nearly 23,000 cases are pending.
More judges are expected to be appointed to the FCC after the winter break. The total number of FCC judges currently stands at 13, and could increase further by presidential order. The FCC is also likely to resume operations at new facilities next month.
Legal experts say judicial appointments are at the center of any meaningful reform, but there is a growing perception that the government has packed the FCC with like-minded judges whose rulings and constitutional interpretations bind all courts, including the SC.
Even top lawyers, despite opposing the 27th Constitutional Amendment, are said to be cautious about challenging the FCC itself, a hesitation that speaks volumes about the trust deficit surrounding the new forum.
Attorney Umer Gilani notes that in the prelude to the 27th Amendment, the government often advanced the view that the creation of the FCC would help clear the huge backlog of cases at the top level.
“With the utmost humility, I cannot subscribe to this opinion. In my opinion, litigants and lawyers only respond to incentives. If there are no disincentives to file a false or frivolous case, as is currently the case, the wave of litigation simply cannot be stopped,” says Gilani.
He further said that “all other factors being equal, the larger the number of judges, the larger the backlog. This view goes against popular perception, but is based on a scientific study of the situation. Therefore, I suspect that the FCC will soon have a backlog similar to that of the old SCP, if not greater,” says Gilani.
Another lawyer believes that the purpose behind the creation of the FCC is not limited to judicial reforms but also to target the Pakistan Tehreek-e-Insaf (PTI), particularly Imran Khan.
He stated that the government should have considered appointing judges to the FCC who had proven to have developed constitutional jurisprudence.
So far, FCC judges have decided more than 400 cases since the court’s creation. Three reported rulings have been uploaded to the FCC’s official website.
