THANKS to the frequency with which constitutional crises arise in this country, and the time consumed in judicially resolving them, a debate has arisen as to whether Pakistan would be better served by establishing constitutional courts.

The idea of constitutional courts gained serious traction when Benazir Bhutto and Nawaz Sharif signed the Charter of Democracy in 2006. It proposed setting up a federal constitutional court with equal representation by all the provinces. The concept behind its proposed establishment was that constitutional matters ought to be heard exclusively by a dedicated court, and routine matters by the regular judicial set-up, which would include the Supreme Court and the respective high courts.

On the face of it, the idea seems plausible. Over the years, courts have become increasingly burdened with constitutional questions, leading to less and less focus on the day-to-day cases being fixed before the high courts and Supreme Court. This has been gradually increasing the frustration of litigants, lawyers, and even judges, who find it difficult, if not downright impossible, to obtain, assist in or deliver justice. Constitutional courts would also allow specialised judges to hear specialised matters, and that can only help in achieving fair adjudication.

But is this idea really as good as it sounds? Perhaps not. The challenges in creating new courts explicitly for constitutional matters are manifold. Firstly, and let alone the constitutional and legislative changes required, the new entity would require a separate budget, new staff, and a new building, to say the least.

And that is without even touching on the additional costs involved in utilities and amenities, including but not limited to police and other law-enforcement protocols required to provide security to the new installations. Along with this, there would have to be new processes and procedures for regulating the court, which in all likelihood would lead to greater expense, red tape, and more bureaucracy.

The challenges in creating new courts explicitly for constitutional matters are manifold.

Furthermore, we live in a country in which interference and influence of judicial decisions is not unheard of. In such a context, by restricting constitutional matters to the judgement of only a handful of active or retired judges, would it not become easier for non-democratic or ‘extra-constitutional’ players to influence Pakistani affairs?

Would it not be more convenient if they only had to cater to, or target, a fewer number of judges rather than more? Isn’t this exactly why there is a saying that the whole is greater than the sum of its parts?

Interestingly, lawyer Irfan Qadir, who was reappointed special assistant to the prime minister on legal reforms and accountability recently, has lately talked about the appointment of retired judges, amongst others, to the constitutional court.

Insulating serving judges from the influences and uncertainties of a post-retirement life is hard enough, but to bring in actively retired judges to decide, arguably, the most important constitutional questions of the country, appears to be a recipe for disaster.

Every retired judge, consciously or unconsciously, and without taking anything away from them, would have one eye on the job and another on the impending ‘re-retirement’.

Therefore, if not constitutional courts, then what? Dare I say something along the lines of ‘permanent constitutional benches’? When I talk about ‘permanent constitutional benches’, my reference is to creating fixed and specialised benches within the existing institutions — that is, a dedicated constitutional bench within the Supreme Court, as well as the high courts.

What such permanent constitutional benches would look like, or how their credibility and integrity would be ensured are questions for a separate article. Nonetheless, if constituted properly, such benches would be able to draw on the institutional strength and history of the respective institutions, as well as pre-existing processes and procedures already in vogue.

Furthermore, it would preserve the hierarchal integrity of the judicial set-up and be instrumental in ensuring that the national exchequer is not unnecessarily burdened with more costs and expenses, as well as utilisation of resources, for something which existing institutions already had the capacity to entertain.

As a country, we love to follow the all-or-nothing principle; that is, either we will go all in without thought of cost or consequence, or we will just not bother at all.

Unfortunately, we don’t think much of installing processes that gradually build up our institutions and their capacities. The concept of ‘permanent constitutional benches’ is supposed to be just that — a step away from the radical and violent carving out of one jurisdiction from one court to make a new one, and insistence on creating permanent benches within existing institutions which could perhaps do the same work without as much intrusion and expense.

It would be an incremental approach to the compartmentalisation of tasks and would allow for changes and adjustments along the way.

Further, such benches would also have benefits similar to that of constitutional courts. They would provide specialised forums for dispute resolution, provide predictability and consistency on account of their permanent nature, free the other judges so that they could hear routine criminal and civil matters, ensure that day-to-day litigants are not put on the back-burner on account of ‘burning national issues’, and create an overall increase in transparency and faith in the institution. In essence, they would have pretty much the same benefits without all the costs associated with establishing a new forum altogether.

The idea of constitutional courts is not new, nor is it in any way unique. However, Pakistan needs to resist the temptation for grand-slamming over-the-top changes that look spectacular on paper, but are difficult and costly to implement.

It needs to avoid taking apart established institutions to create new ones, which would cause much inconvenience and disruption. If anything, we already have institut­i­o­­ns whose capacities can be augmented to meet the same objectives. We need to acknowledge this. We need an incremental approach. Not a radical one.

The writer is a Karachi-based lawyer.
basil.nabi@gmail.com
Twitter: @basilnabi

Published in Dawn, June 24th, 2023