It appears that the federal constitutional package has proven too difficult even for Maulana Fazlur Rahman to accept, and without the required numbers, the proposal is effectively stalled. However, the government alliance seems to have shifted strategy. Leading the charge is Pakistan People’s Party chairman Bilawal Bhutto Zardari, who on Tuesday emphasised the need for a federal constitutional court to address provincial disparities, among other issues.
This pivot towards a federal constitutional court seems to be one of the key components of the original package, which the government now seeks to present separately to the National Assembly. In the coming days and weeks, we can expect more momentum to build around this idea before another attempt to formally introduce a proposed amendment is made. On the surface, the arguments in favour of a federal constitutional court seem valid.
Bilawal Bhutto Zardari argues that such a court would reduce the Supreme Court’s caseload, allowing it to focus on appeals from high courts, while the federal constitutional court could handle questions of legislative interpretation, inter-provincial disputes, and conflicts between laws and government actions. However, the real issue lies not in the powers of the court itself, but in who wields those powers—and more crucially, who appoints the individuals to do so. Dividing the Supreme Court’s responsibilities and allowing each body to manage its own burden might be effective, but if the new court, which handles sensitive matters of state, power distribution, and institutional balance, is controlled by a select group of individuals, the potential for undue influence becomes too great.
One factor the Pakistani government must consider is that a chief justice ascends to the position only after undergoing an extensive vetting process, and then, as part of a large panel of similarly experienced judges, shares the responsibility of deciding constitutional matters. This collective decision-making process dilutes the influence of any single person, encourages diverse opinions, and safeguards against undue influence by dispersing authority.
However, if the federal constitutional court is smaller due to its narrower scope, and if the selection process for its judges grants excessive control to the executive, this proposal may encounter further complications.