Historically, the Supreme Court has been a Federal Court with an original jurisdiction of adjudicating disputes between the Federal Government and the Provinces. In this connection, Article 184 (1) reads: “The Supreme Court shall, to the exclusion of every other court, have original jurisdiction in any dispute between any two or more Governments.” In this clause, “Governments” refers to the federal and provincial governments. One can see that the very first subclause of the original jurisdiction is related to conflict resolution between the federating units and the Centre – a task which the country’s top court has failed to deliver.

In 1973, apart from this, it was conferred with the power to issue orders in the according to Article 199 with reference to fundamental rights without prejudice to the jurisdiction of High Courts.

The very first subclause of the original jurisdiction is related to conflict resolution between the federating units and the Centre – a task which the country’s top court has failed to deliver.

However, the Supreme Court has no cases for adjudication of disputes between the Federal Government and the Provinces since 1973. Reason? Its composition isn’t based on the equal representation of Provinces. Hence, none of the federating units moved the apex court despite being highly aggrieved.

At the same time, the enforcement of fundamental rights is primarily a function of provincial High Courts. However, the Supreme Court took upon itself to enforce fundamental rights. By misusing, rather abusing, this power through infamous suo motto, it destroyed civilian supremacy as well as provincial autonomy. As a result, some provinces faced insurgency because of not having any constitutional forum to press for their constitutional rights.

The Supreme Court also unconstitutionally removed two prime ministers without having any such jurisdiction or authority under the constitution, which dealt a heavy blow to civilian supremacy. Its opinion in the reference of President on Article 63A and the short order in the reserved seats case have also been castigated as rewriting the Constitution – a power that only rests with Parliament. This has prompted the political parties to overhaul the top court. That’s why its jurisdiction under Article 184 is being transferred to Federal Constitutional Court based on the equality of Provinces. It is not surprising that the vested interests are now crying hoarse.

By misusing, rather abusing, this power through infamous suo motto, it destroyed civilian supremacy as well as provincial autonomy.

In fact, the Supreme Court has either not exercised jurisdiction under Article 184 (1) and (2) – adjudicating disputes between federal and provincial governments – or has abused its powers under Clause 3 of the same article through suo mottos. Now, this very jurisdiction is being transferred to Federal Constitutional Court based on the equality of Provinces.

Establishment of civilian supremacy and an effective Dispute Resolution Forum (DRF) between the Provinces and the Federal Government has been neglected/ignored and/or deliberately stonewalled since August 1947.

Major political parties, in particular the PPP, have struggled for the achievement of these goals since Gen Zia imposed martial law and later a hybrid political system in 1985. This struggle spans over decades.

Through the 8th Amendment, Zia restored the presidential system. Subsequently, under Article 58(2)(b), four elected governments were dismissed in the 1980’s and 90’s.

Later, Gen Musharaf passed the 17th Amendment to disqualify certain “undesirable politicians” by suddenly introducing the requirement of a university degree for all candidates aspiring for the Parliament. Both Zia and Musharaff relied on compliant Supreme Court judges to pursue their nefarious designs.

In 2006, the PPP, PML-N and some smaller parties signed the historic Charter of Democracy (CoD) following which the 18th Amendment was passed by a consensus in 2010.

The CoD envisaged a Federal Constitutional Court based on the equality of Provinces with jurisdiction of Article 184 of the Constitution.

If the 18th Amendment had been implemented in letter and spirit, the political system in the country would have been much stronger.

It must be recalled that the Supreme Court has never ever exercised its original jurisdiction to adjudicate disputes between Islamabad and the Provinces or among-between the Provinces. It has miserably failed to perform its functions as a DRF 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 Federal Constitutional Court for a judicious resolution.

Moreover, the Supreme Court has consistently failed to uphold the spirit of Article 184, which ensures equal representation from all the four provinces. From inception, Punjab has always been overrepresented in Pakistan’s top court.

As the Supreme Court has thus failed to be a neutral and non-partisan forum for adjudication of disputes between Islamabad and the Provinces or among/between the Provinces, the Federal Constitution Court as proposed in the 26th Amendment fills this gap.

The 54 points suggested in the proposed 26 Amendment aim at correcting 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 Federal Constitutional Court 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. Few of them have been objected by the PPP.

The 54 points suggested in the proposed 26 Amendment aim at correcting the judicial course of our history which has either swayed to political populism or veered towards expediency by making and unmaking governments.

The incumbent government also prudently thought to take some advantage of the opportunity to pass a major amendment and has, therefore, proposed to amend Article 9 and Article 248 as well in the best interests of smooth governance, which are out 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 non-representational composition of the Supreme Court and as well as its partisan role in political matters.

If the 26th Amendment is carried out, 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 The Supreme Court judges 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 (Federal and Provincial) under Article 184 (1) and (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 (perhaps under influence of supra powers).

The proposed Federal Constitutional Court would be based on equal representation from all Provinces.

As envisaged in the CoD, all appeals arising out of Article 199 from the provincial High Courts would be filed in the Federal Constitutional Court. Meanwhile, the existing Supreme Court would decide all civil and criminal appeals emerging from provincial High Courts and Tribunals.

The proposed Federal Constitutional Court would be based on equal representation from all Provinces. It would lessen the untenable backlog (thousands of cases) which has jeopardized the fundamental right to life, property and honor of citizens.

The proposed new Judicial Commission, which is to appoint and monitor judges, would be headed by the Chief Justice of Federal Constitutional Court and its two senior-most judges. The other members would be: Chief Justice of Supreme Court and its two senior-most judges, four parliamentarians, federal law minister, Attorney General of Pakistan and a senior advocate of Supreme Court.

As far as the top appointments are concerned, a committee comprising National Assembly members selected through proportional representation of all parties would nominate the Supreme Court and Federal Constitutional Court chief justices. On the other hand, the Judicial Commission would be tasked with evaluating the performance and efficiency of judges. It can recommend removal of judges to the Supreme Judicial Council.

Let us sum up the benefits of the proposed 26th Amendment:
1. Citizens will be able to access appropriate and effective fora for faster adjudication.

2. There would be a check on the performance of judges.
3. Speedy reduction in the backlog of cases would be ensured.
4. Islamabad and the provincial governments and Islamabad will have an equitable and noncontroversial forum for adjudication of disputes. It will certainly heal the wounds of the insurgency-affected provinces.
5. Investors’ confidence will increase and bolster a failing economy.

Both JUI-F and PkMAP in principle support the CoD.  Lastly, even PTI’s objections are 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.