Lawyers question impact of new court

A debate has flared over the working of the country's two apex courts and their effect on litigants - the supposed centre of the justice system - as the creation of the Federal Constitutional Court (FCC) has reshuffled caseloads and raised questions about where justice now stands and how smoothly it moves.

Official figures show that as of November 13, a total of 56,608 cases were pending before the Supreme Court, of which 22,910 cases were transferred to the newly created FCC. As a result, the number of pending cases before the Supreme Court stood at 33,796 on December 22.

At present, 18 judges, including the chief justice of Pakistan, are performing judicial functions in the SC, against a sanctioned strength of 34 judges.

A senior government official said that while there was no proposal under consideration to reduce the sanctioned strength of SC judges, there was a need to review the overall requirement of judges at the apex court following the creation of the FCC.

On the other hand, seven judges, including the chief justice, are currently performing duties at the FCC, where nearly 23,000 cases are pending.

It is expected that more judges will be appointed to the FCC after the winter vacations. The total number of judges in the FCC currently stands at 13, which may be further increased through a presidential order. The FCC is also likely to resume its operations in new premises next month.

Legal experts say judicial appointments sit at the heart of any meaningful reform, but there is a growing perception that the government has stacked the FCC with like-minded judges whose rulings and constitutional interpretations bind all courts, including the SC.

Even the superior bars, despite opposing the 27th Constitutional Amendment, are said to be wary of taking the challenge to the FCC itself, a hesitation that speaks volumes about the trust deficit surrounding the new forum.

Lawyer Umer Gilani notes that in the prelude to the 27th Amendment, the government often propounded the view that the creation of the FCC would help clear the massive backlog of cases at the apex level.

"With the utmost humility, I find myself unable to subscribe to this view. In my view, litigants and lawyers respond to incentives only. If there are no disincentives for filing a false or frivolous case, as is the case at present, the tide of litigation simply cannot be stemmed", says Gilani.

He further said that "if all other factors remain the same, the greater the number of judges, the bigger the backlog will become. This view runs contrary to popular perception, but it is based upon a scientific study of the situation. Therefore, I suspect that the FCC will soon have a backlog similar to the erstwhile SCP, if not bigger," says Gilani.

Another lawyer believes that the purpose behind the establishment of the FCC is not limited to judicial reforms, but also to target the Pakistan Tehreek-e-Insaf (PTI), particularly Imran Khan.

He stated that the government should have considered nominating judges to the FCC who had demonstrably evolved constitutional jurisprudence.

So far, FCC judges have decided more than 400 cases since the court's creation. Three reported judgments have been uploaded to the FCC's official website.