Confusion Mars FCC’s Early Weeks – Why Pakistan’s New Apex Court Is Struggling to Find Direction

The creation of the Federal Constitutional Court (FCC) under the 27th Constitutional Amendment was expected to reshape Pakistan’s judicial hierarchy. For the first time in history, a separate constitutional apex court has been established, while the Supreme Court (SC) has been reduced to an appellate forum.

However, despite this historic change, the FCC’s first few weeks have been marked by uncertainty, structural confusion, governance issues, and strong criticism from the legal community.

This article explores why the FCC is struggling, what challenges lie ahead, and how the legal fraternity is reacting to the biggest judicial restructure in decades.

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What Is the Federal Constitutional Court (FCC)?

The FCC was formed to exclusively hear constitutional matters, interpretation disputes, and fundamental rights cases. Its decisions are binding on all courts in Pakistan, including the Supreme Court, under Article 189.

This new system was designed to create a clearer separation between constitutional adjudication and regular appeals, but the implementation has been anything but smooth.

A Slow Start: No Reported Judgments, No Clear Jurisprudence

Three weeks into its establishment, the FCC has:

• Disposed of 99 cases,
• Received only 11 new filings,
• And issued zero reported judgments.

For lawyers and constitutional experts, this is troubling. Courts usually set their tone early by issuing landmark rulings that reveal their judicial philosophy. But the FCC website shows no such direction.

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Why This Delay Matters

Apex courts influence:

• Governance
• Human rights
• Legislative interpretation
• Executive accountability

With no authoritative judgments released, Pakistan’s legal community is unsure what the FCC stands for or how it intends to interpret the Constitution.

Logistical Chaos: No Permanent Building, Confusing Record Transfers

One of the FCC’s biggest challenges is lack of infrastructure.

Currently:

• FCC benches are operating out of the Islamabad High Court (IHC) building.
• Reports suggest that the court’s record may be shifted to the Federal Shariat Court (FSC).
• The SC building has not yet been allocated to the FCC.

This has triggered a major debate in legal circles.

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Why Lawyers Want the FCC in the Supreme Court Building

Senior lawyers argue that:

• As the country’s apex court, the FCC should physically operate from Pakistan’s most symbolic judicial building.
• Moving it elsewhere reduces its perceived authority.
• Multiple registry benches of the SC should remain active to ensure “expeditious and inexpensive justice.”

The government has not yet made a final decision.

Massive Backlog Ahead: 22,000+ Cases Waiting

The FCC is expected to inherit over 22,000 constitutional cases from the Supreme Court.

But as of now:

• The SC website still lists 55,747 pending cases.
• The transfer process has not been completed.
• Only seven judges currently sit on the FCC, far too few to deal with such a massive backlog.

Sources say additional judges will be appointed, but only after “logistical issues are resolved.”

Legal Community Raises Concerns About Independence

One of the most serious criticisms against the FCC is the perception that its judges are “executive-minded” because:

• They were appointed by the federal government.
• The government is expected to be the largest litigant before the FCC.

Perception Battle

Observers say the FCC must work hard to demonstrate that:

• It is independent of the executive,
• It delivers justice “without fear or favour”,
• And it does not serve as a government-dominated institution.

Until then, doubts about its legitimacy will continue to rise.

Former Law Officers and Senior Lawyers Criticise the FCC

A former senior law officer said he has not seen a single detailed FCC order yet, calling the new court a political project rather than a judicial necessity.

He argued:

“The objective was not to create a constitutional court; it was to destroy the Supreme Court. That objective has been achieved.”

This sentiment is increasingly common among legal experts.

Superior Bars Still Not Challenging the 27th Amendment

Despite heavy criticism, no superior bar associations have filed a petition before the FCC challenging the 27th Amendment.

Their silence is raising many questions:

• Are they avoiding validating the FCC by appearing before it?
• Are they unsure which court has jurisdiction to hear the challenge?
• Do they fear political pressure?

This silence strengthens the FCC’s legitimacy crisis

IHC Judges Opposed the FCC—But Their Appeal Was Dismissed

Earlier, four Islamabad High Court judges filed a petition in the Supreme Court challenging the constitutionality of the FCC. That petition was not entertained.

Later:

• They filed an intra-court appeal before the FCC.
• No lawyer appeared on their behalf.
• FCC dismissed the case for non-prosecution.

This incident reflects deep divisions within the judiciary itself.

Lawyers Convention Calls FCC “Murder of Judiciary”

The All Pakistan Lawyers Convention, jointly organised by:

• Lahore High Court Bar Association (LHCBA)
• Lahore Bar Association (LBA)

passed a resolution declaring the creation of the FCC as:

“Murder of judiciary.”

However, their resolution did not commit to legally challenging the amendment, showing a cautious, politically sensitive posture.

Historical Parallels: The 2007 PCO

Interestingly, lawyers also did not challenge the 2007 emergency and PCO issued under General Musharraf.

Back then, as now, the legal community avoided direct confrontation with a new judicial order. This suggests a recurring pattern where structural changes go unchallenged despite widespread condemnation.

Can the Supreme Court Still Examine the 27th Amendment?

A section of the legal community believes the Supreme Court can still interpret or examine the amendment, despite being downgraded to an appellate court.

Their argument:

• The SC retains jurisdiction over constitutional amendments under the “basic structure doctrine.”
• Article 189 applies to the FCC, but the SC can still review if the amendment violates fundamental constitutional principles.

However, others strongly disagree, arguing the FCC alone now has the power to interpret constitutional questions.

This unresolved debate will shape Pakistan’s judicial future.

Key Challenges the FCC Must Address

To establish itself as Pakistan’s apex court, the FCC must urgently:

1. Issue clear, detailed judgments

Without jurisprudence, no court can gain credibility.

2. Establish a permanent building and stable infrastructure

Operating from temporary premises damages perception and efficiency.

3. Demonstrate independence from the executive

The judges must prove they are not government-influenced.

4. Clarify scope of public-interest litigation

Experts insist the FCC must first define benchmarks for PIL cases.

5. Manage huge backlog effectively

With only seven judges, thousands of cases will pile up unless reforms are introduced.

Conclusion: The FCC’s Future Depends on Clarity, Independence, and Jurisprudence

The Federal Constitutional Court is at a critical crossroads. It was created to improve constitutional adjudication, but in its early weeks, confusion and logistical setbacks overshadow its purpose.

The legal community is watching closely. For the FCC to succeed, it must quickly:

• Assert its independence,
• Release meaningful judgments,
• Resolve infrastructure issues,
• Define its jurisdiction clearly.

Only then can it emerge as a legitimate and respected apex court capable of shaping Pakistan’s constitutional future.

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