The FCC debate

Pakistan's justice system stands at a defining moment. The proposal for establishing a Federal Constitutional Court (FCC) through the 27th Amendment represents a vital recalibration aimed at strengthening constitutional adjudication, accelerating justice delivery and harmonising the federal structure of governance.

This initiative, long debated yet long overdue, signals a transformative step towards separating constitutional interpretation from appellate adjudication — a distinction that has successfully shaped modern judiciaries across the democratic world.

Pakistan's judicial structure, inherited from the colonial model, centralises all appellate and constitutional jurisdictions in the Supreme Court under Article 175(1) of the constitution. While this unified apex structure ensured judicial consistency, it also resulted in overwhelming burdens on the court’s docket. This concentration often delays justice and diffuses constitutional focus.

The introduction of a "Constitutional Bench" through the 26th Amendment was an attempt to institutionalise specialised constitutional interpretation within the SC. 

However, its experience was neither satisfactory nor sustainable. The arrangement, lacking an independent legal identity, generated confusion over jurisdiction, composition and the binding effect of its decisions.

It blurred rather than clarified the lines between constitutional and appellate functions, drawing criticism from legal experts and jurists alike. The result was an ad-hoc mechanism that failed to address the deeper structural need of a distinct constitutional adjudicatory institution with clearly demarcated powers.

The 27th Amendment now aims to correct that anomaly by establishing a separate constitutional court. Importantly, this reform neither diminishes the authority nor the dignity of the existing Supreme Court. Rather, it strengthens the judiciary by allocating functions more logically and efficiently.

The Supreme Court will continue as the final appellate forum in all civil, criminal, tax, corporate and special law matters under Article 185, while the newly created FCC will be vested exclusively with jurisdiction over constitutional interpretation, federal–provincial disputes, advisory opinions and appeals arising from high court decisions rendered under Article 199.

Thus, there is no curtailment of the Supreme Court’s jurisdiction, nor any dilution of its powers or prestige. The reform merely distinguishes two parallel but complementary streams of justice — one devoted to constitutional adjudication, the other to appellate review. 

This structure mirrors the established practice in Germany, India (through Article 143 advisory references) and Italy, where constitutional courts function without undermining the apex appellate courts.

Under the proposed Article 175B, the FCC will exercise original jurisdiction over matters of constitutional interpretation, questions involving the division of powers between the federation and the provinces, enforcement of fundamental rights involving national importance and advisory opinions sought by the President. 

Appeals from high court judgments under Article 199 — where constitutional jurisdiction is invoked — would lie before the FCC, ensuring consistent interpretation and uniform constitutional doctrine across the country.

Meanwhile, the SC will retain its appellate jurisdiction under Article 185 and all related provisions concerning civil, criminal, tax and commercial cases. The decisions of the SC will remain binding on all courts in Pakistan under Article 189, except on questions falling exclusively within the domain of the FCC. The latter’s interpretations, like constitutional courts elsewhere, will be final and binding on all organs of the state, thereby ensuring judicial coherence and constitutional supremacy.

A forward-looking dimension of this reform lies in the proposal to replicate the constitutional court model at the provincial level. Establishing provincial constitutional courts or benches could significantly improve access to justice and reduce the burden on federal constitutional institutions.

These provincial forums could handle matters of provincial constitutional interpretation, local government disputes, and the enforcement of fundamental rights within the provincial sphere. Such decentralisation would reflect the spirit of Articles 142 and 146 of the constitution, which emphasise legislative and administrative federalism, while preserving the ultimate constitutional coherence under the FCC.

The advantages of introducing a separate constitutional court in Pakistan are multifold. First, it would bring institutional specialisation, allowing constitutional interpretation to be handled by jurists with expertise in public law, federalism, and rights jurisprudence.

Second, it would ensure expeditious justice by offloading constitutional matters from the Supreme Court’s already overburdened docket, thereby enabling speedier disposal of both constitutional and appellate cases. Third, it would promote enhanced federal harmony by providing a structured forum to resolve intergovernmental disputes between the federation and the provinces in an impartial and timely manner.

Fourth, it would foster predictable constitutional jurisprudence, as consistent benches and focused jurisdiction would help develop stable constitutional doctrine and reduce fragmentation in judicial precedents. Finally, it would strengthen public confidence and accessibility, since a separate, visibly dedicated court would reinforce public faith in constitutional accountability and judicial independence.

The German Bundesverfassungsgericht, the Italian Corte Costituzionale and the Turkish Constitutional Court all demonstrate that the co-existence of a supreme appellate court and a separate constitutional tribunal is not only feasible but functionally efficient. 

Their experiences confirm that constitutional justice, when institutionally separated, evolves with greater consistency, academic depth and democratic legitimacy. Even India’s model, while maintaining a unified Supreme Court, acknowledges the need for specialised benches for constitutional interpretation — something Pakistan now aims to institutionalise permanently through constitutional amendment.

It is equally important to emphasise that the proposed reform does not disturb the appointment process or tenure safeguards for judges. The focus remains entirely on institutional design, not individual appointments. All constitutional and procedural protections guaranteed under Articles 175 and 209 will continue to apply, ensuring the independence, impartiality and integrity of the judiciary remain sacrosanct.

The reform therefore strikes a careful constitutional balance: it reinforces the Supreme Court’s appellate primacy while creating a specialised institution to uphold constitutional supremacy. Such division of labour enhances judicial capacity rather than divides it.

Pakistan’s evolving constitutional democracy demands a judicial structure that is both responsive and specialised. The establishment of a Federal Constitutional Court under Article 175B is a necessary modernisation — one that harmonises with global constitutional traditions while addressing Pakistan’s unique governance challenges. It introduces clarity where confusion once prevailed under the 26th Amendment’s constitutional bench experiment.

It preserves the authority of the Supreme Court while elevating constitutional interpretation to a dedicated institutional platform.

Ultimately, this reform is not about creating competing courts but about creating coherence and strengthening the constitutional promise that justice, in all its dimensions, remains accessible, independent and swift.

The writer is a practising advocate of the Supreme Court of Pakistan with 25 years of legal standing. He can be reached at: [email protected]

Disclaimer: The viewpoints expressed in this piece are the writer's own and don't necessarily reflect Geo.tv's editorial policy.

Originally published in The News