FCC's first year marked by debate over judicial independence

PESHAWAR BUREAU —As the Federal Constitutional Court (FCC) marks its first anniversary on Friday (today), debate continues over the impact of its creation on judicial independence and its ability to safeguard the rights of those aggrieved by actions of the incumbent government. Following the restoration of judges in 2009, the Supreme Court emerged as the country's most powerful institution.

However, the apex court faced allegations of weakening parliament and unnecessarily interfering in executive affairs by exercising its jurisdiction under Article 184(3) of the Constitution. Two elected prime ministers were removed from office by the apex court. There is little doubt that the Pakistan Peoples Party (PPP) and the Pakistan Muslim League-Nawaz (PML-N) were among the political parties that suffered from what they regarded as judicial overreach.

At the time, parliament and the executive had a limited role in the appointment of judges. However, instead of establishing a balance between the institutions, both parties subsequently succeeded in increasing the executive's influence over the judiciary. First, the two parties introduced the 26th Constitutional Amendment, which enhanced the executive's role in judicial appointments.

Subsequently, the 27th Amendment was enacted, establishing the FCC, whose judges are appointed under the new constitutional framework. Following the 27th Constitutional Amendment, jurisdiction relating to the enforcement of fundamental rights and the interpretation of laws and the Constitution was assigned to the newly established FCC.

Notably, no bar association challenged the 27th Amendment. When the procedure for judicial appointments was changed through the 18th Amendment, however, the Supreme Court, under then chief justice Iftikhar Muhammad Chaudhry, immediately took up the matter and began examining its constitutional validity.

The situation has now changed. No superior court has examined whether the creation of the FCC has affected judicial independence, which is one of the salient features of the Constitution. One section of the legal fraternity believes that the legitimacy of the FCC remains questionable. A former law officer argues that the legitimacy of the present parliament itself is seriously in doubt, making all legislation, particularly constitutional amendments, enacted by it akin to amendments introduced under martial law.

"Unless ratified by a duly elected parliament, their legitimacy will remain under a cloud," he adds. Unlike the Supreme Court, the FCC does not have a three-judge seniority committee to oversee the constitution of benches, as its recently notified Practice and Procedure Rules vest this authority in the chief justice.

Since the chief justice began constituting benches, there has also been no provision ensuring adequate representation of all provinces on the court's benches. The FCC's judges are already facing what some lawyers describe as a "battle of perception", particularly because they were appointed by the federal government, which is expected to be the principal litigant before the court in several politically sensitive cases.

Recently, the FCC suspended proceedings before the Peshawar High Court (PHC) in cases instituted under Article 199 of the Constitution on or after October 12, following the deployment of armed forces in Khyber-Pakhtunkhwa to act in aid of civil power. The development has implications for challenges to the preventive detention of hundreds of PTI workers under the Maintenance of Public Order (MPO) Ordinance.

Subsequently, the PHC stopped entertaining writ petitions filed under Article 199 of the Constitution. The FCC has also sought the record of the case concerning Imran Khan's health from the Supreme Court. It had further issued notices to respondents on a petition challenging the de-seating of Khyber-Pakhtunkhwa Chief Minister Sohail Afridi.

The court also sought a response from the provincial chief minister over his statement regarding the formation of an Imran Khan "Rahae Force". Similarly, the FCC restrained the Peshawar Anti-Terrorism Court (ATC) from entertaining a petition filed by the K-P government seeking the withdrawal of cases against PTI leaders, including Chief Minister Sohail Afridi.

Interestingly, the federal government has allocated Rs6.048 billion for the FCC in the 2026-27 budget. Despite the passage of ten months, seven judicial positions on the court remain vacant. Currently, 21,750 cases are pending before the FCC. The FCC has also provided significant relief to the federal government by upholding Sections 4(b) and 4(c) of the Income Tax Ordinance, 2001, a decision estimated to generate an additional Rs310 billion in public revenue.

However, the federal government also suffered a setback when the FCC declared Section 7E of the Income Tax Ordinance, 2001, ultra vires the Constitution. Over the past year, the FCC has delivered around a dozen judgments in what has been seen as an effort to establish its institutional authority vis-à-vis the Supreme Court.

Legal opinion Former additional attorney general Tariq Mahmood Khokhar says the country is witnessing an era of "inverted jurisprudence", in which courts prioritise judicial publicity over judicial integrity, celebrate anniversaries rather than judicial decisions, and reduce the judiciary to executive connectivity instead of maintaining complete separation.

"The FCC has contested origins. No passage of time could cure that. However, there was an alternative: it ought to have sought its redemption through acting as the guardian of the Constitution, democracy and judicial independence. It did not," he says. Khokhar argues that the 26th and 27th constitutional amendments were enacted by an unrepresentative legislature, paving the way for the erosion of judicial independence and the subversion of the constitutional and democratic order.

"There was time; there were opportunities for judicial review. Salient features of the Constitution, including the separation of powers and the independence of the judiciary, were upended. We now have a de facto executive-judiciary integration," he adds. Another senior lawyer, however, offered a contrasting assessment, saying that the objectives of the 27th Constitutional Amendment had been competently fulfilled.

"Parliament and those opposition parties that paved the way for the complete surrender of judicial independence must celebrate the completion of one year since they put their stamp on an amendment conceived in the fortresses of unelected power centres. They have won, and that is precisely what must be celebrated," the lawyer said.

Hafiz Ehsaan Ahmad Khokhar, however, said that although the establishment of a new apex constitutional court had presented considerable challenges, the FCC had made a positive beginning by deciding cases involving important constitutional, tax and other legal questions. He said these achievements reflected the court's efforts to develop an independent institutional identity and strengthen constitutional adjudication in the country.

Khokhar also appreciated the FCC's efforts to develop its institutional framework, particularly the formulation of its own rules. He emphasised that the shortage of judges needed to be addressed through the timely appointment of competent lawyers and experienced judges. Similarly, the shortage of courtroom space and facilities for staff required immediate attention, either through suitable accommodation within the Supreme Court premises or, preferably, the establishment of a separate building for the FCC at the earliest.

He observed that the FCC was a positive institutional step that required time and adequate resources to realise its full potential.