We Don’t Need a FCC

By Nida Usman Chaudhary

I have been trying to locate one decent legal argument from proponents of the FCC that would stand its ground and would be worth engaging with but all I have been reading is regurgitation of political rhetoric, use of ethnic card and emotional tapping into our checkered history and the judiciary’s role in complicity with the powers that be.

The disingenuity with which they write about the need for the FCC shows that they are likely motivated by past trauma, fear, insecurity and personal vendettas against the judiciary as a whole, and ?are now willing to use that as an excuse to control, ‘appoint’ and ‘monitor’ judges with the sole objective to tame them or even to punish them for their past and potential future actions that don’t fall in line.

In effect, what they seem to be doing is advancing a narrative against the Supreme Court to suggest that the Supreme Court is the unaccountable villain, the “big bad guy” who, if the parliament is able to replace with their handpicked judges in the FCC, (who mind you, will not be imported from outer space but will be from the pool of the same retired or sitting judges or those qualified to be judges) then provinces and citizens will get equal representation and speedy justice. Voila! Suddenly, all our problems of delay in litigation will magically vanish because another handpicked forum will be there to take care of specialised cases of constitutional nature!

Never before have the people of this country been told such blatant nonsense as this and allow me to tell you why:

The proponents of the FCC fail to explain how and why the handpicked judges of the FCC will act any differently than how they would act as judges of the supreme court and what guarantee do they have that they will not replicate the issues they are identifying in the judges of the Supreme Court in cases involving the government? Are they relying on the fact that the cherry picking they are reserving for themselves by handpicking judges would be sufficient protection to guard against them going rogue against the government of the day? Which brings me to question this desire in the first place, why would the parliament wish to appoint judges aligned with the ruling government and not see how problematic that is?

The only answer that comes to my mind is that understanding of state, its three pillars (executive, judiciary and parliament), rule of law, separation of powers and independence of judiciary is completely lost to them. Also, they are confused as to the role of judiciary as a whole but the bigger confusion for them is in understanding that higher judiciary (high courts and above) does not operate and is not quiet the same as subordinate judiciary. There is a very big difference between these two types of judiciary which is completely lost to the proponents of the FCC. This means that the lens with which the subordinate judiciary is viewed cannot be used to assess the functioning and role of the higher judiciary. You just cannot compare apples with oranges.

The subordinate judiciary is recruited via competitive exam and is ‘recruited’ under judicial service rules of the provinces, like any other posts for civil service for the government. These are positions for ‘career’ in judicial service. It is in this context that their promotions, transfers and postings are regulated through the service rules.

As opposed to this, the ‘appointments’ for higher judiciary are appointments to a constitutional role and the judges therein serve not the government, but the constitution. They have a mandate under the constitution and since they are not in service to the government, their independence is to be safeguarded so that when they decide matters of law within their constitutional jurisdiction or in cases where the government is a party, the judges are not even perceived to be partial or susceptible to any influence by the government.

the ‘appointments’ for higher judiciary are appointments to a constitutional role and the judges therein serve not the government, but the constitution. They have a mandate under the constitution and since they are not in service to the government, their independence is to be safeguarded so that when they decide matters of law within their constitutional jurisdiction or in cases where the government is a party, the judges are not even perceived to be partial or susceptible to any influence by the government.

It is for this reason they have a secured tenure in the constitution itself and they cannot be transferred at whims and will of the ruling government. If this would be amended to allow the government or the parliament to have that kind of control, the impartiality of the judges will be seriously questioned and this will undermine rule of law and access to justice in the country for all citizens as a whole. If the citizens perceive that the handpick judge, who is at the mercy of ruling government and political figures (as his or her transfer and evaluations depends on them), then how will they expect justice from them particularly, where the government or its department or any public body is made a party in a case? The parliament will surely be fuelling the probability and perception of partiality if the amendment to handpick judges and dominate the judicial appointments process is indeed passed.

The parliament will surely be fuelling the probability and perception of partiality if the amendment to handpick judges and dominate the judicial appointments process is indeed passed.

The proponents of the FCC say that “the Supreme Court has 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”. They also say that, “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”, but they fail to explain how the FCC with handpicked judges of government will be perceived as a neutral and non-partisan forum in disputes between citizens and the government?

Another smokescreen that the proponents keep blowing is with regards to ‘efficiency’ in the judicial sector which they say would come because somehow the backlog of cases will magically disappear once a specialised court dealing with constitutional matters would be established. Never mind the facts on ground and studies that suggest that delays in the system are due to several factors at the grassroots level and several external factors such as lawyer’s strikes, existing vacancies in courts, culture of adjournment, frivolous litigation, outdated procedural laws, poor case management and lack of proper training, infrastructure and resources.

To add to that, as Dr. Maryam Khan also explained in a session on constitutional courts, that tribunalization has not resulted in the efficiency that was expected of it. Pakistan has experimented with this before in shape of the numerous specialised courts and tribunals like the consumer courts, banking courts, gender based violence courts, child courts etc. and the pendency problem remains an issue. Why we don’t learn from history and our own past experiments is a moot point however, one thing is clear that the government’s grand idea for installing another forum in shape of FCC is just like making another underpass to ease the flow of traffic, which only addresses the symptom and not the cause.

one thing is clear that the government’s grand idea for installing another forum in shape of FCC is just like making another underpass to ease the flow of traffic, which only addresses the symptom and not the cause.

The proponents however do not stop there. In fact, they go many steps forward and in the quest to establish another forum with handpicked judges, they also aim to permanently change the way judicial appointments are made reserving for themselves the greatest space and role in the JCP and other committees whilst eliminating the role of high court chief’s from appointments in the high courts and also significantly reducing the chances of female lawyers being appointed to the JCP as a member by inserting technical barriers like requiring 20 years of experience and license as an advocate supreme court. There are no provisions to ensure equal representation of women in the Judicial Commission of Pakistan or of those from diverse communities, backgrounds and differently abled persons. ?The proposed amendments are therefore, actually anti-representation of women and other marginalised communities.

There are no provisions to ensure equal representation of women in the Judicial Commission of Pakistan or of those from diverse communities, backgrounds and differently abled persons. ?The proposed amendments are therefore, actually anti-representation of women and other marginalised communities.

Finally, a word on historical context which is completely missing from the imagination of the drafters and proponents of this draconian amendment. For starters, the charter of democracy was agreed as a pushback to the authoritarian regime and dictatorship of its time. Even in that context, the judicial appointments process for the FCC was stated to be the same as that was in place at that time for other courts. In that, the Chief Justice used to recommend a panel of names for appointments to the President. Thereafter, the 18th and 19th amendment of the Constitution gave us the current process for judicial appointments in shape of Article 175A. Both prior and post 18th amendment, the recommendation for judicial appointments for constitutional role in the high courts and supreme court has been the prerogative of the Chief Justice or the JCP. For perception of an impartial judiciary, the separation of powers was to be maintained and the parliament and government could not be seen to be cherry picking judges in their own cause, for their own vested interests.

Today, the supreme court appears to assert its independence which one would expect the government and parliament to laud but it seems they are unhappy with this expression of independence and actually want to ensure that judiciary does not remain impartial and instead always acts in their interest which explains why they want to now ensure that they control or replace them as forums with one whose judges they can handpick. It’s like rigging elections is no longer sufficient so now there is a need to rig the courts as well.

It’s like rigging elections is no longer sufficient so now there is a need to rig the courts as well.

As regards evaluation, the scrutiny of the judges is already embedded within the existing structure. We know how references have been filed against some of them to the Supreme Judicial Council so to say that there is no accountability of judges is also misleading. Accountability ought to be greatest for those who come with public votes for public offices and they of all should never be in charge of appointing the judges.

The FCC in all jurisdictions where it has been established is supposed to be a watchdog over the parliament and the laws they make. By stripping this proposed FCC of its ability to call into question constitutional provision or amendment, the government is attempting to create its own kind of a constitutional court, the likes of which does not appear to exist anywhere else so just because the idea of a constitutional court was written as a point in the charter of democracy, it doesn’t mean that the proposed 26th amendment should be blindly supported. It needs to be read in its entirety to see how this is an attempt to permanently tilt the balance of power in favor of the ruling government leading towards rule by law rather than rule of law. Not only are constitutional supremacy, judicial independence and separation of powers, which are core pillars of a democratic state, being undermined by the amendments as a whole but also civilian rights under Article 199 of the constitution are being suppressed in name of national security.

We need reforms but not the ones that come at the cost of these core principles.

This lollipop of a solution, the smokescreen to efficient justice is nothing but a blatant lie. We need reforms but not the ones that come at the cost of these core principles. Do better.

The writer holds LL.B (Hons) and LL.M in Law and Development from University of London. She tweets at @NidaUsmanCh.