Confusion mars FCC's early weeks

Lawyers, observers question court impact after three weeks

ISLAMABAD:

Three weeks into its existence, the newly minted Federal Constitutional Court (FCC) is struggling to find its bearings, having yet to leave a visible imprint on the country's judicial landscape.

Despite disposing of 99 cases, it has not issued a single reported judgment, leaving lawyers and observers waiting to see what kind of jurisprudence the new apex court intends to craft.

So far, it has disposed of 99 cases, even as just 11 new matters have been filed by the country's former apex court.

Perhaps most tellingly, the FCC has yet to put its stamp on any reported judgment on its website, leaving lawyers on tenterhooks, eager to see the shape its jurisprudence will take.

The court is still finding its footing, burdened by several challenges, starting with the search for a permanent home. For now, FCC benches are working out of the Islamabad High Court (IHC) premises, while whispers suggest that the court's records are being shuffled off to the Federal Shariat Court.

With seven judges currently on board, the FCC is expected to take on more than 22,000 cases from the Supreme Court. However, the SC's website still shows 55,747 pending cases, indicating that the handover is still a work in progress and the wheels of justice are turning slowly.

Meanwhile, several lawyers are urging the government to allow the FCC, now the country's apex court, to operate from the SC building. They argue that, to deliver expeditious and inexpensive justice, SC benches should sit in multiple registries.

Following the passage of the 27th Constitutional Amendment, the SC has become an appellate court, while the FCC now functions as the apex court. Its decisions, under Article 189 of the Constitution, are binding on all courts, including the SC.

Sources told The Express Tribune that additional judges will be appointed to the FCC once logistical issues are resolved.

Senior lawyers are also pressing the court to prioritise cases involving the interpretation of law and the Constitution, rather than immediately venturing into public-interest matters linked to maladministration or poor governance.

They insist the FCC must first define clear parameters for public-interest litigation.

The FCC judges also face what many describe as a "battle of perception," given that they were appointed by the federal government, an entity expected to be the primary litigant before the court. Observers stress that the challenge now is to demonstrate that the judges are not "executive-minded" and will dispense justice "without fear and favour".

A former senior law officer said he has yet to see a single order issued by the FCC. He lamented that "the objective was not to create a constitutional court, it was to destroy the SC. That objective has been achieved," he added.

Despite their strong opposition, none of the superior bars has so far challenged the 27th Amendment before the FCC, deepening a serious legitimacy crisis.

Five IHC judges had earlier raised objections regarding the constitutionality of the FCC. However, no one appeared on their behalf before the FCC in their transfer case. The bench, led by Justice Aminuddin Khan, dismissed their intra-court appeal (ICA) on grounds of non-prosecution.

The All Pakistan Lawyers Convention, organised jointly by the Lahore High Court Bar Association and the Lahore Bar Association, passed a resolution declaring the FCC "murder of judiciary".

Notably, the resolution did not state that the 27th Amendment would be challenged.

Historically, the superior bars also did not challenge the November 3, 2007 Provisional Constitutional Order (PCO) and emergency before the apex court led by then-chief justice Abdul Hameed Dogar.

Earlier, four IHC judges had attempted to challenge the 27th Amendment before the SC, but their petition was not entertained.

A section of the legal community still believes the SC can examine the 27th Amendment.