The recently proposed constitutional amendments have faced significant backlash, with widespread concerns voiced across various sectors. Many legal professionals, in particular, are expressing their apprehensions about it, citing potential threats to legal stability and apprehensions of interference in judicial independence. Hence, they actively oppose the changes. While many of the concerns expressed are valid with regard to specific measures, they overlook the underlying premise for some of the amendments, which may be genuine.
Overtly, the proposed bill seeks to address concerns surrounding the judicial system. The public has lost their trust in the Supreme Court and how it manages its heavy caseload. Consequently, some cases have been pending for over 20 years, with litigants left with little hope of seeing their cases resolved within their respective lifetimes, simply because the top court is overburdened with cases lodged by politicians asking constitutional questions. As a result, most cases pending in the Supreme Court only see the light of day when litigants on both sides are six feet under the ground, with their heirs left to follow up on the slow proceedings. Lawyers, however, oppose the amendments because it could mean that the cases would turn up far earlier for adjudication than before, limiting their ability to milk clients.
The creation of the Federal Constitutional Court (FCC), as proposed in the draft constitutional amendments, would help divide this burden with the Supreme Court, and swift relief could be expected.
It is pertinent to note that the Supreme Court has three types of powers; one is the advisory jurisdiction, in which the Supreme Court provides the President of Pakistan with its opinion on certain legal questions referred to it. The second is the constitutional jurisdiction, which is the original jurisdiction of the court; where issues related to the Constitution are addressed. The third is the appellate jurisdiction, where the judgments and decisions of cases from courts lower than the Supreme Court, are considered. The pace with which the appellate cases are being viewed is today a greater cause of grief for the aggrieved than the one who or what originally aggrieved them.
The proposed Federal Constitutional Court (FCC) is envisioned to be superior to the Supreme Court. It would enjoy the original and advisory jurisdiction, which currently belongs to the Supreme Court. The constitutional amendment would thus leave the Supreme Court with only the appellate jurisdiction, and it could focus on reducing the backlog of thousands of cases.
When considering the outcomes of the proposed constitutional amendments, we must remember the suffering of those most affected by the current judicial inefficiencies
The proposed constitutional amendment suggested that the retirement age for judges of the FCC should be 68 years. Moreover, its chief would be termed the 'Chief Justice of the FCC of Pakistan. On the other hand, the retirement age for judges of the Supreme Court will remain at 65 years. As per the amendment, the 'Supreme Court of Pakistan' shall be renamed simply as the 'Supreme Court', while its top judge -known as the Chief Justice of Pakistan- would be titled as the 'Chief Justice of the Supreme Court'. A judge of the FCC will be appointed for a fixed three-year term, and the retiring age of FCC judges suggests that judges retiring from the Supreme Court could be elevated to the Federal Constitutional Court. The Chief Justice of the reformed Supreme Court would be appointed from amongst the five most senior judges in the Supreme Court and serve a fixed term of three years.
If this bill is ratified, a system of checks and balances will be established. The government will have leverage over the judiciary and thus have a hand over the entire system.
Amendments have also been proposed to the judicial commission's composition. This would not only accelerate court processes but would also be fruitful regarding the job expected to be performed by judges, whereby a certain number of judgments should be made with a sound mind and not deviate from the law and the Constitution.
Certain lawmakers have opposed the proposed constitutional amendments as it could place them in a difficult position, with their complaints against judges to be addressed promptly, unlike in the past when accusations of misconduct or incompetence often lingered until the judge retired - at which point the complaint would become redundant.
The lengthy process of appointing judges has been shrunk to the extent that the Supreme Judicial Council and the relevant parliamentary committee would appoint a judge in one sitting. Currently, the Supreme Judicial Council undertakes a lengthy process of conducting meetings, shortlisting names, and sending reports about selected judges to the parliamentary committee, which holds its meetings to deliberate on the names and then finally decides them in a process that sees many years slip away.
Another positive aspect of the bill is that writ petitions filed under Article 199, which can currently be filed in both the High Court and the Supreme Court, will now be entertained by the High Court and the new FCC. Appeals against these writ petitions will be heard exclusively by the FCC. This is a beneficial development, as it ensures cases will be resolved more efficiently and within a specific time limit - which will be imposed to expedite proceedings.
Despite the drawbacks of the proposed bill, there are also positive aspects that deserve recognition. Instead of outrightly rejecting the entire bill, we should acknowledge its merits and support the provisions that align with legal principles. We must avoid an ego-driven stance, especially regarding the exclusion of male and female lawyers from the drafting process. Dismissing the entire bill on these grounds alone is not a constructive approach. When considering the outcomes of the proposed constitutional amendments, we must remember the suffering of those most affected by the current judicial inefficiencies. Families have fought for their rights for generations, trapped in an endless cycle of litigation. Many are hesitant to seek justice due to concerns about the notoriously slow process of the courts and biased judgments.
It is time to focus on reforms prioritising the people and ensuring justice is accessible, efficient, and fair. While this bill is imperfect, it offers an opportunity for positive change, and we should work towards refining it in the public's interest rather than rejecting it outright.