At the end of last year, Pakistani courts were hearing about 2.3 million unresolved cases. Nearly 83% were pending before the district courts; the rest was distributed between the high courts, the Federal Sharia Court and the Supreme Court.
The SC’s share hovered around 50,000, at most a few percentage points of national dependence.
Within the higher courts, constitutional work is concentrated rather than dominant: in the Lahore High Court, for example, writs and constitutional cases make up about 84,000 out of about 179,000 pending cases, or almost half of that court’s docket, but this whole stockpile is still a tiny fraction next to the millions of cases stuck beneath it.
Pakistan’s backlog remains, by all accounts, primarily a problem of first instance.
Faced with these data, Parliament has progressed at unusual speed. In short order, a constitutional amendment that creates a Federal Constitutional Court (FCC), moves constitutional jurisdiction away from the existing Supreme Court, and touches on sensitive state design issues was passed, with little committee review or public engagement.
The government’s explanation is simple. The SC, we are told, is drowned in constitutional and “political” disputes, which have crowded out ordinary appeals. The FCC is proposed as the solution: it will assume the constitutional charge; the Supreme Court will focus on its appellate role; and the dependence will fall.
So says the Statement of Objects and Reasons of the Constitution (Twenty-seventh Amendment) Act, 2025, blaming an “increasing number of constitutional petitions” for delays in regular cases and promising that a specialized court would “significantly reduce waiting times.”
This narrative has already been challenged within the system. Former Chief Justice Jawwad S Khawaja presented the amendment to the court he once headed, warning that it would weaken the state, disrupt the separation of powers and erode consensus around the 1973 constitution.
Since then, the debate has moved from draft to facts. President Asif Ali Zardari has now signed the 27th Amendment, creating the new office of the Chief of Defense Forces and making the FCC an operational reality rather than a proposal.
In response, three senior judges, SC Justices Syed Mansoor Ali Shah and Athar Minallah, and Lahore High Court Justice Shams Mehmood Mirza resigned in protest, calling the amendment an attack on the constitution and on judicial independence.
The question for this article, however, is more specific: If the claim is made that the FCC aims to alleviate the backlog for the ordinary litigant, do the numbers support that claim?
The number of pending SC cases increased from around 20,000 in the mid-2010s to around 40,000 in 2018 and exceeded 50,000 in 2021 to the mid-50,000s in 2024-25.
Compared to the national stock already mentioned above, this makes the apex court a small but visible pocket of congestion rather than the epicenter of the delay.
Constitutional work, even when aggregated, is numerically marginal once one moves away from the higher courts and toward the system as a whole. Even in the high courts where judicial and constitutional cases occupy much of the local docket, this entire layer sits at the top of a system in which more than 2.3 million cases are pending, the vast majority in the lower courts.
Realistically speaking, the SC’s constitutional workload is therefore well below one or two percent of the national total; even if every case on his list were renamed “constitutional,” it would have little impact on the overall numbers.
The Court itself has recognized that much of its docket consists of petitions for review rather than new constitutional challenges. And in its own jurisprudence on special courts, it has warned that creating new forums or simply adding judges would not solve the delays; the real work lies in managing cases and courts, especially at the lower levels.
Taken together, the data and the doctrine point in the same direction: Pakistan’s backlog is largely a trial phenomenon. The problem the FCC is supposed to solve is numerically marginal.
Under the 27th Amendment, the FCC is designed to exercise its original constitutional jurisdiction, including federal-provincial disputes and many fundamental rights issues, while hearing constitutional appeals from the high courts.
The existing SC is being revamped to largely become an appellate tribunal for further work. Ironically, even if we assume, very generously, that a full third of the cases currently pending before the Supreme Court are “constitutional,” we are dealing with perhaps twenty thousand such cases in a system of more than 2.3 million. Under this assumption, the FCC’s primary scope covers well less than 1 percent of pending cases in Pakistan.
Nor will the FCC simply inherit existing issues and resolve them quietly. The new courts generate their own disputes – jurisdictional disputes between the Supreme Court, the FCC and the high courts, composition and appointment challenges, new levels of appeal and review. A body created and justified as a back-up mechanism for the “ordinary litigant” is, by design, aimed at the smallest and most elite part of the role.
All of this might still be defensible if the FCC was cheap. It’s not. The SC budget for 2023-2024 is around 3.5 billion rupees, largely consumed by salaries and allowances.
A parallel constitutional court, with its own judges, registries, security, infrastructure and staff, even if initially small, will operate in the same order of magnitude.
The billions are envisaged amid an IMF program requiring strict fiscal consolidation, cuts to non-priority spending and tough adjustments in the social and development sectors. Meanwhile, the district court system, which bears more than four-fifths of the backlog, is struggling with basic infrastructure, understaffing and overworked judges.
The same capital injected into trial capacity in the form of more judges and clerks, a reliable processing system, functional courtrooms, ADR mechanisms, case flow management and IT would strike at the heart of the backlog.
Justice Khawaja’s request therefore reads less like a personal lament than a diagnosis. The amendment, he asserts, is “so patently unconstitutional on its face” that it should have been rejected by parliamentarians sworn to preserve and protect the constitution.
An amendment which deprives the CS of its constitutional powers “de facto abolishes [it] as a constitutional court” and is “manifestly incompatible with the Constitution”.
If the legislature and executive can abolish the highest court and replace it with another forum run by their representatives, they are empowered to “change the rules of the game as and when they deem appropriate” – an outcome fundamentally at odds with the separation of powers and judicial independence.
The federal government asks us to view the FCC as a measure of kindness to the ordinary citizen. The numbers suggest something else: that the new court is targeting not the backlog of cases weighing on citizens, but the backlog of constitutional questions weighing on power.
If it is to arise in the name of the ordinary litigant, the least we owe it is to be honest about the problem it is actually designed to solve.
Originally published in The News
