enior leaders of the major parties in the ruling coalition are once again trying to build consensus to pass a stalled constitutional reforms package. When the government made a similar move last month, Jamiat Ulema-i-Islam chief Maulana Fazl-ur Rehman did not agree to pledge his support for legislation whose contours and consequences were not entirely clear.

This time around, Pakistan Peoples Party chairman Bilawal Bhutto-Zardari is leading renewed efforts to amend the constitution. On October 2, he reiterated his party’s commitment to the proposed reform. “If the amendments are made before October 25,” he said, “the matter can be settled peacefully.”

While a draft bill has yet to be finalised some observations can be made about the nature and purpose of these proposed changes based on a previous draft and the statements of senior government leaders.

In common parlance, an ‘amendment’ suggests a modification, alteration, addition or removal. So, the first question is: do the proposed changes represent amendments to the constitution or a complete overhaul?

The core issue here goes beyond the obvious. Concerns have already been expressed regarding the timing of the bill’s introduction. A controversy has surrounded the age of retirement and extensions for Supreme Court judges. The political context has added to the complications. Given the allegations of widespread electoral rigging, the legitimacy of the parliament and therefore its competency have also been questioned. Finally, there are the consequences of the establishment of a federal constitutional court and its relationship with the Supreme Court. Some of the critics of the proposed reforms have described the initiative as an attack on the independence of the judiciary and separation of powers in the constitutional scheme.

In 2015, in a majority opinion rendered in the District Bar Association, Rawalpindi case, the Supreme Court had held that while the parliament is at liberty to legislate as it sees fit, it could not pass constitutional amendments that ran foul of certain salient features of the constitution. These salient features are implicit restrictions on the parliament’s ability to alter the constitution. The independence of the judiciary and the separation of powers are deemed to be among these salient features. The opponents of the amendment are arguing that the proposed amendment runs contrary to the salient features of independence of judiciary and separation of powers. They hold that the creation of a federal constitutional court(FCC), changes the method of appointment of judges to the Supreme Court and the divestment of some of the Supreme Court’s powers threaten the core principles.

The proposed establishment of the FCC will drastically alter the judicial hierarchy. It will strip the Supreme Court of its original jurisdiction to deliberate upon and enforce fundamental rights and in matters involving interpretation of the constitution make it subordinate to the FCC.

The establishment of a separate constitutional court is not unheard of. Many civil law jurisdictions such as France, Italy and Germany have independent constitutional and appellate courts.

According to the last available draft, the FCC, not the Supreme Court, shall exercise original jurisdiction under Article 184 to hear disputes between the provincial governments and the federation. Also, suo motu powers under Article 184(3) will lie with the FCC and not the SC. Decisions of the FCC will be binding on the Supreme Court. The FCC will have exclusive jurisdiction to hear appeals from High Court decisions rendered under their writ jurisdiction and questions of law demanding an interpretation of the constitution shall be referred by High Courts exclusively to the FCC.

The composition of the Supreme Judicial Council will be changed to consist of: (i) chief justice of the FCC (ii) chief justice of the SC (iii) next senior-most judge of the FCC (iv) two most senior chief justices of the High Court. Appointment of the FCC chief justice will be made by a National Assembly Committee, from a pool of three most senior judges of the FCC. (Currently, the president has to appoint the senior most judge of the Supreme Court as chief justice of Pakistan.) The Judicial Commission, which determines appointments of judges to the superior courts, is proposed to include two members of the Senate and two members of the National Assembly.

If the draft law is passed, the Supreme Court will become the final appellate court. It will no longer be empowered to interpret the constitution; the Federal Constitutional Court will take that role.

The establishment of a federal constitutional court is not unheard of. Many civil law jurisdictions such as France, Italy and Germany have independent constitutional and appellate courts. However, the legal tradition in Pakistan has been one of common law and not civil law. Also, unlike the above mentioned countries Pakistan has a history of executive interference in the judiciary.

It has been argued that the manner in which the FCC is proposed to be established effectively does away with the idea of separation of powers and will make the judicial branch subservient to the executive.

If the amendment becomes law, appointments to the constitutional court will be made by a judicial commission including parliamentarians. It also envisions a future where judges might be transferred. It is feared that this will result in undue pressure on the judges.

It is thus argued that the proposed amendments lend themselves to the erosion of judicial independence and are therefore hit by the salient features criterion.

Momna Taufeeq, based in Lahore, is the managing partner at Hassan Taufeeq Hayat, Advocates and Legal Consultants. She may be reached at momna.taufeeq @hthlaw.pk

Rao Hamza Hayat, a Lahore-based advocate of the High Court, is a partner at Hassan Taufeeq Hayat, Advocates and Legal Consultants