FCC's turbulent debut raises tough questions

The newly established Federal Constitutional Court (FCC) is grappling with its first legal and administrative challenges in its earliest days, with uncertainty looming over its permanent location, staffing and the perception battle surrounding its legitimacy.

At present, there is no clarity on where the FCC will ultimately be housed. For now, it has been accommodated within the Islamabad High Court (IHC) premises. However, courtroom No. 1 has not been made available to the CJ of the FCC for hearings.

Earlier, the government had intended for the FCC to begin functioning from the Federal Shariat Court (FSC). The plan stalled because of objections from FSC judges.

Several FCC judges, including CJ Aminuddin Khan, used their chambers within the Supreme Court building on Monday. Senior lawyers argue that the judges should formally begin operating from the SC premises.

Meanwhile, the FCC has started hiring retired officials and judges for administrative positions. However, lawyers believe that to reduce costs, the FCC should consider utilising existing SC employees for administrative roles.

A Supreme Court official claimed that thousands of cases are expected to be transferred to the FCC for adjudication, adding that managing and disposing of the backlog will pose a major challenge for the newly formed court.

Meanwhile, senior lawyers are urging the FCC to prioritise cases involving the interpretation of law and the Constitution rather than immediately taking up public interest matters relating to maladministration or poor governance.

They stress that the FCC should first establish clear parameters for public interest litigation.

Lawyer Faisal Chaudhry said lawyers remain uncertain about whether to file the case in the SC or the FCC, as there is still no clarity on their respective jurisdictions.

The FCC has yet to formulate its rules of procedure. At present, division benches are hearing cases in the absence of a fully developed regulatory framework.

The judges of the FCC also face a "battle of perception", given that they were appointed by the federal government, which itself is expected to be the primary litigant before the court.

The challenge now confronting the judges is to demonstrate that they are not "executive-minded" and will dispense justice "without fear and favour".

A senior lawyer who challenged the 26th Constitutional Amendment believes that the bar should avoid filing petitions against the 27th Amendment at this stage, arguing that "the executive has total control over the judiciary".

Adding to the rising momentum, the Sindh High Court Bar Association has announced a convention on November 21 to oppose the 27th Amendment.

Meanwhile, it has emerged that former SC judge Mansoor Ali Shah, who resigned as a protest against the constitutional tweak, is not currently inclined to visit bar associations.

Justice (retd) Shah is expected to spend a few months in Lahore or possibly abroad, as he has been offered international arbitration work and a position at LUMS. He intends to pursue academic interests in the international arena.