Constitutional courts

The Pakistani constitution envisages the judiciary as a bastion of rights and justice. Chapter II of Part VII is about the Supreme Court of Pakistan, which includes Articles 184, 185 and 186 empowering it with the original, appellate and advisory jurisdiction to protect the people’s fundamental rights, ensure the rule of law and safeguard the sanctity of the Constitution. With such broad jurisdiction and expansive mandate, the Supreme Court hear cases on disputes between the federal and provincial governments under original jurisdiction and appeals to any judgments, decrees or sentences conferred by a High Court under appellate jurisdiction and provides President with an opinion on any questions of laws that are of public importance under its advisory jurisdiction. This extensive scope of authority results in a wide range of litigation being brought before the Supreme Court, contributing to a gigantic list of pending cases. As per the SC website, 52,450 cases are still lying before the apex court, which is one of the chief reasons for the long delays in disposing of lawsuits besides limited judicial infrastructure, and lack of alternate dispute resolution mechanisms.

The Supreme Court is swamped with constitutional petitions, suo motu and political cases, with little regard for civil and criminal cases pertaining to ordinary citizens. This leads to increased frustration amongst the litigants and violates the spirit of the right to speedy justice. It is, therefore, important to have a separate constitutional court to deal with constitutional petitions and parliamentary actions related thereto. A dedicated constitutional court can help in dispensing decisions swiftly, and more efficiently without interrupting the pace of regular criminal and civil cases in the Supreme Court.

The proposal to form a constitutional court was first presented in the Charter of Democracy signed by Nawaz Sharif and Benazir Bhutto in 2006 after the Supreme Court legitimised the 1999 military coup d’état based on ‘the doctrine of necessity’. Earlier, in Bhutto v Chief of Army Staff, the Supreme Court had validated Gen Zia-ul-Haq’s successful 1977 coup against Zulfikar Ali Bhutto’s duly constituted government on the same principle of necessity.

Despite the incumbent government’s repeated legislative intervention to clip the powers of the Supreme Court by first passing The Supreme Court (Practice and Procedure) Act, 2023 and now with the proposal to establish a parallel constitutional court, as suggested by the PM’s special assistant on legal reform and accountability, who criticised the alleged biased judgments of the Supreme Court. He sought that the solution for making “choice benches” leading to “political engineering” lies only in forming this special court.

Even though the cynical and political intentions of this government appears to be there, the idea of a constitutional court is not new, as several countries have such specialised courts that operate within specific legal and political contexts. Their effectiveness can be gauged simply from their crucial role in resolving constitutional disputes and most importantly establishing judicial independence, as it reduces the potential of political interference or influence in constitutional decision-making.

Implementing the idea of a constitutional court would require debates inside Parliament, massive constitutional amendments and input from the superior judiciary, given that it would be the next step in the evolution of Pakistan’s judicial system. It’s unsure, whether this parliament, which is not a true representative of the people of Pakistan, would have the moral authority to make such decisions on behalf of the entire country, remains a question.

Constitutional courts are imperative to reform constitutional dispensation in Pakistan. Specialised benches comprising judges well versed in the Constitution will help in disposing of constitutional cases and reduce the burden of the top court. However, this proposal would have been more acceptable if it had not been another attempt by Parliament to encroach on the domain of the apex court.

Published in The Express Tribune, June 20^th, 2023.

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