THERE is a particular kind of bravery that costs one nothing. It announces itself loudly, accepts the applause, and quietly ensures it has never actually stood in anyone’s way (God forbid it ever does!). The Federal Constitutional Court (FCC) has become rather good at it.

The verdict earlier last month is one such example. The FCC heard the constitutional appeals pertaining to Section 7E of the Income Tax Ordinance. It declared it unconstitutional, void ab initio, and an overreach by the federal legislature.

Some sections of the legal fraternity beamed with something resembling optimism. Well, it’s only natural, seeing the FCC ruling against the government. Especially for those who had earlier touted the idea of an FCC, this was proof that the institution born of a rushed and widely condemned constitutional amendment was not simply a vehicle for executive convenience. But if anything, this was institutional independence in action.

One may like to believe that. But belief, dearest gentle reader, in matters of constitutional law, is a poor substitute for scrutiny.

Independence is not a credential conferred by a single ruling.

What was the matter at hand? The Finance Act 2022 had imposed a tax on the “deemed income” of taxpayers from immovable property worth over Rs25 million. With a 20 per cent tax rate, it taxed property at 5pc of its FBR-defined fair market value. The provision was disputed in all high courts. The federal government defended it as a legitimate fiscal measure.

Here, the FCC, setting aside the Income Tax Ordinance section in question, reasoned that the legislation itself exceeded legislative competence and the tax, by its very nature, was imposed on an imaginary or notional income rather than actual earnings.

On legal merits, the case was decided correctly. In fact, that is precisely how the case should have been decided from the very outset. The problem is a deeper one. Is one case all it takes to anoint the court with a gilded halo of virtue, collective confidence and redemption? Perhaps even a judicial equivalent of an NRO. And most importantly, whom did it cost anything to decide the case?

The property owners aren’t the dispossessed. They are not the disappeared. They have not been at the forefront of political or social repression. Their civil liberties haven’t been curtailed. The class of litigants is one with access to senior counsel, resources and other avenues of redress. This is not to say that justice shouldn’t have been served. It should have been. But the striking down of Section 7E of the Income Tax Ordinance cannot be categorised as institutional courage. It is, at best, institutional competence and that too in an arena where defiance carries no real risk.

Consider, then, what the FCC has chosen not to do.

Earlier this year, in March, the court, in the Maria Shahbaz case, upheld an allegedly underage Christian girl’s marriage to a Muslim man. It ruled that while it is criminal to solemnise a child marriage, the Act of 1929 does not expressly declare such a marriage to be void or voidable. In effect, even if a crime takes place, the outcome stays untouched. The court unequivocally invoked Quaid-i-Azam’s legacy by citing in its judgement that the Child Marriage Restraint Act 1929 was introduced by Jinnah himself, but then proceeded to rule against the protective intent of that very legislation, gutting the law he championed. Perhaps the court could have drawn from Jinnah’s advocacy in the Gulbai case where he represented an underage girl who was being forcibly married off to a suitor, as well as his showdown with Muslim ule­­-ma, his own constituency, and the colonial government when the Act was pro­­-posed.

When there are issues of substantive justice that a ‘constitutional’ court should occupy itself with, and that await the court’s attention, the FCC has instead busied itself with procedural matters: high courts must pronounce reserved judgements within a span of 90 days, and so forth. These are genuine grievances, but of an administrative character rather than of power. To be frank, reforming the calendar of a high court threatens no one.

What would it mean, then, to speak truth to power? To take up cases pertaining to journalists being silenced under the Peca Act. To take up laws that are selectively enforced and have almost never been challenged at a constitutional level. To acknowledge the agony of those whose kith and kin have disappeared. To examine the transfers of Islamabad High Court judges.

The Section 7E verdict is not nothing. But it is certainly not enough. Because independence is not a credential conferred by a single ruling. It will have to be built through the accumulation of decisions that cost something to make.

The writer is a lawyer.

Published in Dawn, June 2nd, 2026