At the end of last year, Pakistan’s courts were sitting on about 2.3 million pending cases. Almost 83% were pending in the district judiciary; the rest were spread across the High Courts, the Federal Sharia Court and the Supreme Court.
SC’s share hovered in the mid-50,000s, at most a few percentage points of national dependence.
Within the superior courts, constitutional work is concentrated rather than dominant: at the Lahore High Court, for example, writs and constitutional cases are about 84,000 out of about 179,000 pending cases, close to half of that court’s own caseload, yet the entire stock is still a tab next to the millions of cases stuck.
Pakistan’s backlog remains, by any measure, predominantly a litigation problem.
Against this data, Parliament has moved with unusual speed. In short order, a constitutional amendment that creates a Federal Constitutional Court (FCC), shifts constitutional jurisdiction away from the existing Supreme Court, and touches on sensitive issues of state design, with little committee scrutiny or public engagement.
The government’s explanation is simple. The SC, we are told, is drowning in constitutional and ‘political’ litigation which has displaced ordinary appeals. The FCC is offered as the solution: it will shoulder the constitutional burden; The Supreme Court will focus on its appellate role; and addiction will decrease.
The Statement of Purpose and Reasons for the Constitution (Twenty-Seventh Amendment) Act 2025 says the same thing, blaming an “increasing number of constitutional challenges” for delays in ordinary cases and promising that a specialized court will “significantly reduce pendency”.
That narrative has already been challenged from within the system. Former Chief Justice Jawwad S Khawaja has taken the amendment back to the court he once headed, warning that it will weaken the state, disrupt the separation of powers and erode consensus around the 1973 constitution.
Since then, the debate has moved from drafts to facts. President Asif Ali Zardari has now signed the 27th Amendment Act, which creates the new office of the Chief of Defense Forces and establishes the FCC as an operational reality rather than a proposal.
In response, three senior judges, SC Justices Syed Mansoor Ali Shah and Athar Minallah, and Lahore High Court Justice Shams Mehmood Mirza, have resigned in protest, describing the amendment as an attack on the constitution and the independence of the judiciary.
The question for this piece, however, is narrower: If the claim is that the FCC is about backlogs for the common litigant, do the numbers support that claim?
The SC’s pending caseload has increased from around the mid-20,000s in the mid-2010s to around 40,000 in 2018 and past 50,000 in 2021 to the mid-50,000s in 2024-2025.
Compared to the nationwide population already mentioned above, this makes the apex court a small but visible pocket of congestion rather than the epicenter of delay.
Constitutional work, even where it clusters, is numerically marginal once you zoom out from the superior courts to the system as a whole. Even in high courts, where subpoenas and constitutional issues take up a large part of local case processing, this entire layer sits on top of a system where more than 2.3 million cases are pending, the vast majority in the trial courts.
On a realistic point of view, therefore, the SC’s constitutional workload is well below even one or two percent of the national total; Even if all the cases on its list were relabeled as ‘constitutional’, it would still hardly affect the overall numbers.
The court itself has acknowledged that a large portion of its docket consists of review petitions rather than new constitutional challenges. And in its own jurisprudence on special courts, it has warned that creating new forums or simply adding judges does not remedy delays; the real work lies in case and court management, especially in the lower layers.
Taken together, the data and the doctrine point in the same direction: Pakistan’s backlog is predominantly a phenomenon for a court. The problem the FCC is meant to solve is numerically marginal.
Under the 27th Amendment, the FCC is designed to exercise original constitutional jurisdiction—including federal-provincial disputes and many fundamental rights issues—while hearing constitutional appeals from the high courts.
The existing SC is being reworked as largely an appellate court for other work. Ironically, even if one very generously assumes that a full third of the current Supreme Court pendency is “constitutional,” we are dealing with perhaps twenty thousand such cases in a system of more than 2.3 million. On that assumption, the FCC’s core area covers well under one percent of the pending caseload in Pakistan.
Nor will the FCC simply inherit existing cases and quietly work through them. New courts generate their own litigation—jurisdictional contests between the Supreme Court, the FCC, and the high courts, challenges to composition and appointments, new layers of appeal and review. A body created and justified as a relief mechanism for the “ordinary litigant” is, by design, aimed at the smallest and most elite section of the case.
All of this could still be defensible if the FCC were cheap. It isn’t. SC’s budget for 2023-2024 is in the region of Rs 3.5 billion, mainly consumed by salaries and allowances.
A parallel constitutional court, with its own judges, registries, security, infrastructure and staff, although initially meager, will function on the same scale.
These billions are being considered amid an IMF program that calls for tight fiscal consolidation, cuts in non-priority spending and difficult adjustments in social and development sectors. Meanwhile, the district judiciary, which carries more than four-fifths of the backlog, struggles with basic infrastructure, understaffing and overburdened judges.
The same capital injected into trial-level capacity in the form of more judges and clerks, reliable process service, functional courtrooms, ATB mechanisms, case management and IT would strike at the heart of the delay.
Justice Khawaja’s petition therefore sounds less like a personal lament and more like a diagnosis. The amendment, he argues, is “so patently unconstitutional on its face” that it should have been rejected by parliamentarians sworn to preserve and protect the constitution.
An amendment stripping the SC of its constitutional powers “effectively abolishes [it] as a constitutional court” and is “clearly incompatible with the constitution”.
If the legislature and the executive can abolish the highest court and replace it with another forum staffed by their nominees, they are empowered to “change the rules of the game as and when they see fit”—a result fundamentally at odds with separation of powers and judicial independence.
The federal government is asking us to view the FCC as a favor to the common law process. The figures suggest something else: that the new court is not aimed at the backlog of cases that burden the citizens, but at the backlog of constitutional issues that burden the government.
If it is to be born in the name of the common litigant, the least we owe the plaintiff is honesty about what problem it is actually built to solve.
Originally published in The News
