President Asif Ali Zardari swears in Justice Aminuddin Khan as the Chief Justice of the Federal Constitutional Court at 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 effects on litigants – the supposed center of the justice system – as the creation of the Federal Constitutional Court (FCC) has reshuffled the caseload and raised questions about the current state of justice and the smooth flow of its proceedings.
Official figures show that as of November 13, a total of 56,608 cases were pending before the Supreme Court, of which 22,910 had been 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.
At present, 18 judges, including the Chief Justice of Pakistan, are exercising judicial functions in the SC, against the authorized strength of 34 judges.
A senior government official said that while no proposals were under consideration to reduce the number of judges sanctioned by the SC, there was a need to review the overall requirements for judges in the apex court after the creation of the FCC.
In contrast, 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 be further increased by presidential decree. The FCC is also expected to resume operations in new premises next month.
Legal experts say judicial appointments are at the heart 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 the senior bars, while opposed to the 27th Constitutional Amendment, would be reluctant to take up the challenge from the FCC itself, a hesitation that speaks volumes about the trust deficit surrounding the new forum.
Attorney Umer Gilani notes that in the run-up to the 27th Amendment, the government often floated the idea that the creation of the FCC would help clear the massive backlog of cases at the supreme level.
“With utmost humility, I find myself unable to subscribe to this view. In my opinion, litigants and lawyers only respond to inducements. If there are no disincentives for filing a false or frivolous complaint, as is the case now, the flood of litigation simply cannot be stemmed,” says Gilani.
He added that “if all other factors remain the same, the greater the number of judges, the worse the backlog will become. This view runs counter to popular perception, but it 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 larger,” Gilani said.
Another lawyer believes that the aim of setting up the FCC is not limited to judicial reforms but also aims to target the Pakistan Tehreek-e-Insaf (PTI), especially Imran Khan.
He said the government should have considered appointing judges to the FCC who had demonstrably evolved constitutional jurisprudence.
So far, FCC judges have decided more than 400 cases since the court’s inception. Three reported judgments have been uploaded to the official FCC website.
