ARE constitutional courts an idea whose time has come in Pakistan? The proposal to constitute one was seriously presented in the Charter of Democracy signed by Benazir Bhutto and Nawaz Sharif in 2006 after the Supreme Court legitimised the 1999 military coup. The PPP, which came to power in 2008, did not make a serious effort to implement this particular aspect of the CoD. Even when almost a third of the Constitution was modified through the 18th Amendment in 2010 on the PPP’s initiative, the idea of a constitutional court could not be accommodated in the package of amendments.

The PPP tried to raise the question of a constitutional court in the Senate in 2015 during the PML-N’s rule, but the matter didn’t seem to get very far. Recently, the prime minister’s special assistant on legal reforms and accountability, while criticising the Supreme Court’s performance, once again mooted the idea of a constitutional court. The main reasons for establishing a parallel constitutional court — according to him, and as quoted in the media — are that there is ‘a division’ among the Supreme Court judges, and the process of forming benches is reportedly ‘biased’, leading to ‘political engineering’. The SAPM, therefore, thought that the solution for the ‘division’ and ‘biased judgements’ would be the establishment of a constitutional court.

He also gave some features of the proposed court. For example, he mentioned that the constitutional court would comprise former and ‘non-controversial’ chief justices, judges of the superior courts and parliamentarians who are knowledgeable about legal matters.

The idea of a constitutional court is not a novel one.

The idea of a constitutional court is not a novel one, and quick research shows that over 60 countries have dedicated constitutional courts functioning side by side with the apex courts which deal with regular criminal and civil cases. It makes sense especially in a country like Pakistan where the Supreme Court, like other courts in the country, is beset with a heavy pendency of cases. In fact, there is an increasing tendency to take urgent political-constitutional matters to the courts, which end up — in due time — in the Supreme Court, or the apex court opts to take suo motu notice of a matter which it considers to be of public interest. In both cases, the increasing workload of such urgent cases relegates regular criminal and civil cases to lower priority — much to the anguish and pain of the litigants. A dedicated constitutional court may help check the tendency of ‘urgent’ cases interfering with the sequence and pace of regular criminal and civil cases in the Supreme Court.

The idea of a constitutional court is, therefore, a worthwhile one but needs to be seriously debated not only in parliament but also in various other forums such as bar associations, civil society organisations, and the media before a decision is taken in principle. Details such as the composition, qualifications and procedure for appointing and removal of judges, etc, will also need careful consideration.

Since a constitutional amendment will almost certainly be required to establish a constitutional court in the country and the current National Assembly doesn’t have the required numbers to take a decision on a constitutional amendment, the matter will have to wait until the new National Assembly is elected five to six months from now. It is, therefore, difficult to understand the objective of mooting the proposal at this time when several other urgent matters require the attention of both the government and opposition for resolution.

Although there is no harm in initiating a debate on the subject in society, in the context of the present unenviable state of relations between the government and parliament on one hand and the Supreme Court on the other, the proposal may be considered a political ploy to exert pressure on the apex court, which may further vitiate the environment.

Our long experience with the legislation and institutions in Pakistan indicates that unless there is a strong will and a proper mechanism for effective and faithful implementation of the law, mere legislation and the creation of new institutions will not serve any purpose. Instead, they end up further complicating the processes and burdening the public exchequer.

If the government is not satisfied with the performance of the judges who have gone through a rigorous process to rise through the ranks, have decades of experience to their credit, and whose elevation, at least in recent times, was made possible with the consent of government representatives in the judicial commission, how can they be sure that a new institution will not invite similar complaints from them?

The writer is president of the Pakistan Institute of Legislative Development And Transparency.
president@pildat.org
Twitter: @ABMPildat

Published in Dawn, June 4th, 2023