Pakistan is on the verge of significant legislative move by introducing Constitution (Twenty-sixth Amendment) Bill, 2024, which, if passed by a two-thirds majority of both houses, will lead to the establishment of a specialized Constitutional Court. The new amendment is aimed at reshaping the judicial landscape of the country. Perhaps the proposed constitutional amendment fulfills one of the many promises made in the 36–point Charter of Democracy signed by former prime ministers Ms. Benazir Bhutto and Mr. Nawaz Sharif on May 14, 2006, in London. The 4th point of the Charter pledged to set up a Federal Constitutional Court (FCC) in Pakistan to resolve constitutional issues. Constitutional courts have been adopted worldwide and have become a prominent feature in many legal systems. The core functions of constitutional courts, as they originally evolved, have been the review of the constitutionality of legislation and executive actions, as well as the adjudication of disputes among different branches, organs and levels of government. In many countries, the establishment of a constitutional court signifies a shift towards embracing constitutional democracy.

The constitutional courts, often referred to as Kelsenian courts, are considered as the fourth branch of state and are relatively a recent concept in the world. According to Hans Kelsen, an Austrian jurist, the power of constitutional judicial review lies in a specialized and centralized court that is separate from and outside the regular judicial branch of the state. Judicial review is an American invention, evolving since Marbury versus Madison (1803); however, constitutional courts founded on Kelsenian jurisprudence are fundamentally distinct. The American model allows ordinary courts at all levels to exercise constitutional judicial review; however, countries such as Austria, Germany, France and Italy have adopted Kelsenian constitutional court model. In Pakistan, the High Courts and the Supreme Court of Pakistan have the power to constitutionally review vires of legislation and executive actions under Articles 199 and 184(3) of the Constitution, respectively. The Federal Shariah Court has the jurisdiction to declare any law repugnant to the injunctions of Islam under Article 203D of the Constitution. Moreover, Supreme Court of Pakistan has original jurisdiction to decide disputes between any two or more Governments under Article 184(1) of the Constitution. The Supreme Court of Pakistan also has Appellate jurisdiction to hear and decide appeals from decisions made by the High Courts under Article 199 of the Constitution.

The proposed amendment introduces an Article 175B in the Constitution, that establishes a FCC of Pakistan. The proposed FCC of Pakistan will consist of a Chief Justice and a number of judges to be determined by Majlis-e-Shura (Parliament), and in the absence of such legislation by the President of Pakistan. Each province will have an equal number of judges, ensuring balanced representation in the proposed FCC of Pakistan. The judges of the proposed FCC of Pakistan will be nominated by the Judicial Commission of Pakistan as per newly inserted Article 175A in the Constitution; however, the Chief Justice of the FCC shall be appointed from among the three most senior judges, based on the recommendation of the National Assembly Committee formed under newly included Article 175A(2D) in the Constitution. Under proposed Article 178A, the retiring age for the judges of the FCC of Pakistan is 68 years. The seat of the FCC of Pakistan will be in Islamabad. The amended Article 184 gives the FCC of Pakistan exclusive original jurisdiction in inter-governmental disputes (Federal and Provincial Governments) and on issues of public importance that involves violations of fundamental rights enshrined in Chapter 1, Part II of the Constitution. Moreover, the proposed Article 184A covers the appellate jurisdiction of the FCC of Pakistan over the decisions of High Courts made under Article 199 of the Constitution and cases that involve interpretation of the Constitution. The amended Article 185 of the Constitution narrows the scope of Supreme Court's appellate jurisdiction, excluding constitutional questions, which will be the domain of the FCC of Pakistan.

The proposed FCC of Pakistan differs from Kelsenian constitutional courts in several key aspects. The FCC of Pakistan established under the proposed amendment is not centralized. Its structure allows for a decentralized and diffuse model approach because it does not hold exclusive jurisdiction over all constitutional matters; instead, the High Courts too have the jurisdiction to conduct constitutional judicial review. The proposed FCC of Pakistan operates within the broader Constitutional framework of Pakistan, which incorporates elements of Islamic law and socio-political considerations, reflecting the country's unique historical and cultural context as opposed to Kelsenian constitutional courts that are based on legal positivism emphasizing constitution as the highest legal norm. The FCC of Pakistan under the proposed 26th constitutional amendment has specific jurisdictional limits, focusing primarily on concrete cases involving disputes, particularly between federal and provincial governments, as well as appeals related to constitutional matters. Its scope is defined by the constitution and the specific articles governing its operation; however, Kelsenian constitutional courts typically have a broad mandate to engage in abstract review, allowing them to evaluate laws before they are enacted and to assess the constitutionality of laws and government actions. The FCC of Pakistan will primarily respond to cases brought before it, exercising its constitutional judicial review powers making its role more reactive. In contrast, Kelsenian courts have a more proactive role in constitutional matters.

On the other hand, it is intriguing to observe several similarities between proposed FCC of Pakistan and Colonial Federal Court established under the Government of India Act, 1935. Both courts serve as the primary adjudicators in disputes between government entities (Federal and Provincial/ State Governments). Both courts function as appellate bodies, having jurisdiction to hear appeals on constitutional issues. Colonial Federal Court had the jurisdiction to interpret Government of India Act, 1935, and proposed FCC has the jurisdiction to interpret the Constitution of Pakistan, 1973. Similar to Colonial Federal Court, the FCC will play a crucial role in maintaining the federal structure of governance by resolving disputes over jurisdiction and authority between different levels of government. In both courts, the original jurisdiction focuses on issuing declaratory judgments rather than enforceable orders in disputes between governments. Both courts act as final appellate authorities for High Court decisions involving constitutional issues. The proposed FCC of Pakistan is more aligned with the Colonial Federal Court model than with the Kelsenian model – it is clearly a classic case of colonial hangover that just won’t fade away, much like the annual winter smog that blankets Lahore, Punjab, Pakistan.

As Pakistan contemplates the establishment of FCC, it is necessary to recognize the potential challenges that lie ahead. Since, FCC of Pakistan would exercise jurisdiction capable of significantly impacting political matters, it may face retaliatory actions, such as a reduction or elimination of its powers, or even dismissal, as seen in Niger, Myanmar and Poland. Additionally, independence of FCC could be undermined through the appointment process of its Chief Justice by legislative and executive branches of the state. There will be only one chance to make the correct decision under exclusive original jurisdiction of the FCC since there is no court of first instance and once a case is presented to the FCC, its ruling will be final and cannot be appealed. The original jurisdiction of proposed FCC focuses on issuing declaratory judgments rather than enforceable orders in disputes between governments which may result in Political arbitration or mediation instead of adjudication in accordance with the Constitution of Pakistan, 1973. An annoying little reminder from history before sovereignty is that a proposal was made to establish a Supreme Court alongside the Federal Court of India. The joint select committee of the House of Lords and House of Commons on Indian Constitutional Reform (Session 1933-34) noted in its Report at Paragraph 329, Section I, Part I, Volume I, that the establishment of a Supreme Court parallel to the Federal Court is not recommended. The committee expressed concerns that it would be impossible to avoid overlapping jurisdictions due to the difficulty of determining whether a constitutional issue was raised in specific cases under appeal. Furthermore, the committee noted that this situation might lead to undignified and undesirable disputes between the two courts. The committee concluded that the existence of two such courts with co-ordinate jurisdiction would not be advantageous for either the courts themselves or the Federation. It is imperative that Pakistan approaches the establishment of the FCC with caution and foresight.

The Constitution (Twenty-sixth Amendment) Bill, 2024, attempts to address longstanding issues in the judicature. However, the irony of integrating colonial judicial legacies into a modern constitutional framework raises questions about whether this transition will genuinely deliver the intended reforms or merely result in Byzantine procedures. The colonial hangover in Pakistan causes us to cling to outdated systems and practices, as if we are too nostalgic for tea with Britishers to let go of their legacy. The real test will be whether this proposed constitutional amendment can break free from its historical constraints and foster a modern Constitutional Court that is responsive and capable of upholding the Constitution. The proposed FCC of Pakistan can be evolved into a modern and highly effective institution by safeguarding judicial independence, granting exclusive jurisdiction of constitutional judicial review, introducing abstract review powers, facilitating access for public interest groups, fostering public engagement, embracing proactive judicial approach, and modernizing court operations. Ultimately, the success of the FCC of Pakistan, following the passage of proposed constitutional amendment, will depend on the commitment of all stakeholders to prioritize constitutional supremacy over political expediency, ensuring that the FCC of Pakistan serves as a true arbiter of the Constitution in Pakistan's evolving legal landscape.

Usman Ahmed is a constitutional lawyer in Islamabad – Lahore

Usman.ahmed.esq@gmail.com