THE Federal Constitutional Court marked its first anniversary on Friday with a commemorative stamp.
Speaking on the occasion, its chief justice remarked on how fleeting the year had been. Litigants, lawyers and the judges of the Supreme Court might have described it differently. A year after the 27th Amendment rewrote the structure of the country’s judiciary, one of the most basic questions raised by the new order remains unanswered: which court, the FCC or the SC, has the final word? This was, perhaps, bound to happen. Critics had foreseen problems in the short and hurried route the government took from the 26th to the 27th Amendment.
In October 2024, the 26th Amendment carved constitutional benches out of the SC, with their members chosen by a reconstituted Judicial Commission in which judges no longer held a majority. Critics warned then that the independence of the judiciary was at stake. Barely a year later, and in evident haste, the 27th Amendment turned those benches into an entirely separate court. Two of the SC’s senior-most judges resigned in protest the day it became law. Thousands of cases were soon transferred to the FCC, and the SC was stripped of its constitutional jurisdiction. What has followed has seemed less a division of labour than a contest for primacy. Last December, the FCC held that its rulings bind all courts, including the SC, but that the latter’s do not bind the FCC. In May, Chief Justice Yahya Afridi pushed back, ruling that the two are coordinate courts, neither an appellate forum over the other. Last month, the FCC rebuked an SC bench for revisiting a matter the FCC considered settled, raising concerns over judicial discipline. The sparring shows no sign of stopping.
The text of the amendment arguably favours the FCC, while the SC relies on the overall constitutional scheme to assert its position. That both positions can be argued is precisely the problem. Two hasty amendments have created an ambiguity that leaves the two courts defining their relationship through pointed observations in their judgments. The costs are borne by litigants, whose cases risk being shuttled between forums.
The FCC, meanwhile, has worked with seven judges against a sanctioned strength of 13. And its order barring the Peshawar High Court from hearing petitions on emergency and governor’s rule in KP has pushed citizens away from a court closer to home.
Since parliament created this ambiguity, it must now resolve it.
The jurisdiction of the two courts and a mechanism for settling disputes between them should be spelt out in law, not left to judges to fight over. Lastly, the judiciary’s structure is not its only problem. As long as its independence remains in doubt, it will struggle to win public confidence.