The establishment of civilian supremacy and an effective Dispute Resolution Forum (DRF) between the provinces and the federal government has been neglected since August 1947.
Major political parties, in particular the PPP, have struggled to achieve these goals since General Zia imposed martial law and later a hybrid political system in 1985.
Through the 8th Amendment, Zia restored the presidential system. Subsequently, under Article 58(2)(b), four elected governments were dismissed in the 1980s and 90s.
General Musharraf passed the 17th Amendment, to disqualify certain ‘undesirable’ politicians by suddenly introducing the requirement of a university degree for all candidates aspiring to parliament. Both Zia and Musharraf relied on compliant Supreme Court judges, to prop up their nefarious designs.
In 2006 the PPP, PML-N and some smaller parties signed the historic Charter of Democracy following which the 18th Amendment was passed by consensus in 2010.
The CoD envisaged a Federal Constitutional Court based on the equality of provinces with the jurisdiction of Article 184 of the constitution.
It must be recalled that the Supreme Court has never exercised its original jurisdiction to adjudicate disputes between Islamabad and the provinces or among the provinces. The Supreme Court has miserably failed to perform its functions as a Dispute Resolution Forum under Article 184.
If the 18th Amendment had been implemented in letter and spirit, the political system in the country would have been much stronger. The grievances of all smaller provinces like Balochistan, Sindh and Khyber Pakhtunkhwa could have been resolved by taking their disputes to FCC for judicious resolution.
The Supreme Court has consistently failed to uphold the spirit of Article 184, which ensures equal representation from all four provinces; Punjab has always been overrepresented in the court.
The Supreme Court has thus failed to be a neutral and non-partisan forum for adjudication of disputes between Islamabad and the provinces or between two or more provinces. The Federal Constitutional Court, as proposed in the 26th Amendment, fills this gap.
The 54 points suggested in the proposed amendment aim to correct the judicial course of our history which has either swayed to political populism or veered towards expediency by making and unmaking governments. This practice must be stopped. The proposed FCC is a remedy.
It is important to understand that, although the substance of the 26th Amendment is to create a Federal Constitutional Court, 54 articles have to be tweaked/rephrased as there is a direct or indirect reference to the Supreme Court in these. A few of them have been objected to by the PPP.
The incumbent government prudently thought to take advantage of the opportunity of passing a major amendment and has therefore proposed to amend Article 9 and Article 248 as well, in the best interests of smooth governance. These articles are not contentious.
The concept of a Federal Constitutional Court has been part of discussions, debates, seminars and conferences since 2006. All bar councils/ associations of Pakistan have supported the idea throughout. The legal community has long been cognizant of the demands of the provinces to rectify the nonrepresentational composition of the Supreme Court as well as its partisan role in political matters.
If the 26th Amendment is passed, the provincial and federal governments as well as ordinary citizens will have a powerful and neutral forum to turn to. It will have representation from all provinces and will strengthen the trust of the provinces and therefore make the (currently weak) federation strong.
It must be borne in mind that almost all judges of the Supreme Court hail from the influential and elite chambers of Lahore and Karachi, which are certainly not representative of the whole country.
The powers of the proposed Federal Constitutional Court are limited to the hearing of disputes between two or more governments under Article 184 (1)&(2) and to enforce fundamental rights in matters of public importance subject to the provisions of Article 199 under Article 184(3). Thus far, these crucial constitutional provisions have been ignored or misused by the Supreme Court.
As envisaged in the CoD, all appeals arising out of Article 199 from the provincial high courts would be filed in the FCC whereas the existing Supreme Court would decide all civil and criminal appeals emerging from provincial high courts and tribunals.
The proposed FCC would be based on equal representation from all provinces. It would lessen the untenable backlog of the Supreme Court that has jeopardized the fundamental right to life, property and honour of citizens.
The proposed new Judicial Commission (that would appoint and monitor judges) would be headed by the chief justice of the FCC and its two senior-most judges, the chief justice of the Supreme Court and its two senior-most judges, four parliamentarians, the federal law minister, the attorney general of Pakistan and a senior advocate of the Supreme Court.
A committee of eight National Assembly members selected through proportional representation (of all parties), would nominate the CJs of the Supreme Court and FCC.
The Judicial Commission would be tasked with evaluating the performance and efficiency of judges. It could recommend the removal of judges to the Supreme Judicial Council
The benefits of the proposed 26th Amendment will be that citizens will be able to access appropriate and effective fora for faster adjudication. There would be a check on the performance of judges. There would be a speedy reduction in the backlog of cases. The provincial governments and Islamabad will have an equitable and noncontroversial forum for the adjudication of disputes (this would certainly be a balm on the wounds of insurgency-affected provinces). And, finally, investor confidence would increase and bolster a failing economy.
The JUI-F and PkMAP principally support the CoD. Even the PTI’s objections have to do with timing and procedure rather than substance. The people of Pakistan live in the provinces. They have been denied justice for the last 77 years. Federations can grow and strengthen over time if the principles of equity and justice prevail.
The writer has served as advocate
general of Sindh. He tweets/posts @zamirghumro
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