The case for a constitutional court

Parliamentary legislative competence is the authority of a parliament to amend or repeal laws and the constitution. Under Article 239, Pakistan’s parliament can alter the constitution with a two-thirds majority. Since the 1973 constitution was enacted, parliament has passed 25 amendments, none of which has been declared ultra vires or contrary to the constitution’s fundamental principles by the Supreme Court.

The proposed 26th Constitutional Amendment Bill of 2024 aims to introduce several changes to the constitution, primarily addressing provisions in Articles 17, 48, 51, 63-A, 106, 175, 175-A, 181, 184, 185, 186, 187, 200, 209, and others.

Key amendments include creating a Constitutional Court to handle cases related to Articles 184 and 186, merging judicial and parliamentary commissions for appointing superior court judges under Article 175-A, revising the defection clause in Article 63-A, enhancing judicial accountability through Article 209, and permitting judge transfers between high courts under Article 200.

Article 175 and onwards of the constitution address the composition, jurisdiction, and operations of the Supreme Court, Federal Shariat Court, and high courts. The constitution grants parliament the exclusive authority to determine which court has jurisdiction over specific matters and categories. Additionally, with a two-thirds majority, parliament has the power to assign, alter, or transfer jurisdiction between different courts, similar to practices in other countries with parliamentary systems of government.

The necessity to establish a Constitutional Court, as well as the processes for appointing and removing judges, particularly from the superior courts, has long been discussed in our legal and political circles. Despite occasional support, the idea of creating a separate Constitutional Court has not been implemented, largely due to political confrontations. However, most political parties have since endorsed the Charter of Democracy signed in 2006. This charter called for the establishment of a Constitutional Court alongside the regular Supreme Court.

The current demand for a Constitutional Court is driven by the need for a body that focuses solely on constitutional matters, fundamental rights, and intra-governmental disputes, similar to constitutional courts in other countries. These courts provide a mechanism for judicial review, ensuring that laws and decisions made by the legislative or executive branches do not violate constitutional provisions or principles.

Globally, the existence of constitutional courts is widely accepted and does not conflict with the principles of separation of powers or judicial independence. As of now, there are around 70 countries where ordinary supreme courts and constitutional courts coexist. Generally, judges to constitutional courts are appointed through a parliamentary process with fixed tenures.

One of the main drivers behind the push for establishing a Constitutional Court in Pakistan is the overwhelming volume of cases – nearly 60,000 – the Supreme Court is currently handling. Many of these cases, especially those involving the interests of ordinary citizens, have been pending for a significant amount of time. The establishment of a Constitutional Court aims to address this issue by expediting the resolution of such cases and reducing judicial activism.

Creating a Constitutional Court in Pakistan would be a prudent and legally sound decision by parliament, providing a separate forum for constitutional interpretation, intra-governmental disputes, and maintaining constitutional integrity. It would also serve to protect human rights and ensure that government actions comply with rule of law. However, this process should be carried out with transparency, consensus, and a strong emphasis on maintaining the separation of powers and advancing rule of law.

Here is a roadmap package to achieve a better Pakistani justice system: The Constitutional Court should be established as a distinct entity, separate from the Supreme Court. It must focus solely on constitutional issues, fundamental rights, recurring administrative malfeasance, human rights concerns, and intra-governmental disputes while maintaining its independence. The criteria for the appointment and retirement of Constitutional Court members should be clearly and transparently defined.

The Constitutional Court’s composition and jurisdiction must be clearly defined, ensuring it operates as a separate legal entity from the Supreme Court. It should be established at the provincial level and in Islamabad to handle constitutional matters. The judges of the Constitutional Court should include at least 40 per cent top professional lawyers from the Supreme Court.

Fundamental rights should be extended to cover Articles 32, 34, and 37, which address state welfare and local government empowerment. Article 175A of the constitution may be amended to include a clear mandate, composition, and procedure for filling vacant high court seats. A Judicial Commission – a Parliamentary Committee – should be established to oversee the appointment of Supreme Court judges, chief justices of high courts, and new high court judges. This commission should include two members each from the opposition and treasury benches of the National Assembly and Senate.

Articles 178 and 194 may be amended to allow the appointment of chief justices of the high court and Supreme Court from a pool of the most senior judges. Judges who are superseded should be retired. The Practice and Procedure Act of 2023 should be amended to apply to the high courts and the proposed Constitutional Court, focusing on case management, bench composition, and public interest and constitutional law issues.

A six-month time limit should be established for deciding cases before the Constitutional Court, Supreme Court, and high courts.

The authority of the Supreme Judicial Council under Article 209 should be expanded to include performance assessments of superior court judges. The mandate and composition of the Council should be increased to include five senior Supreme Court judges and five chief justices of high courts.

The retirement age for Supreme Court justices should remain at 65, and for high court judges at 62. There should be no direct or indirect extensions for any chief justice or judge. At least 40 per cent of Supreme Court judges should be appointed from among the top lawyers of the Supreme Court, in line with Article 177.

The process for transferring judges between high courts, as provided in Article 200, may be amended through a two-thirds decision of the combined Judicial Commission. Police and investigation reforms should be implemented across the country, following the Police Order 2002, to enhance law-enforcement capacity. Legal reforms should be introduced in high courts and district courts to ensure the expeditious dispensation of justice. The system of Alternate Dispute Resolution should be strengthened at all adjudication levels.

A full House Committee of both the Senate and National Assembly should be established to legislate new laws and overhaul the existing criminal, administrative, accountability, regulatory, taxation, and civil justice systems. Key objectives could include improving judicial transparency, better access to justice nationwide, reducing court delays and backlogs at all levels, and simplifying procedures in the courts, CRPC, 1898, and CPC, 1908.

In a nutshell, parliament must make now it a top priority to address the need for a strong, vibrant and expeditious justice system in Pakistan as per the principles of policy enshrined in Articles 29 to 38 of the constitution. Pakistan can create a sound and effective judicial system by combining constitutional, institutional, legal, and technical changes.

The writer is a practising

advocate of the Supreme Court of Pakistan with 25 years of legal standing.

He can be reached at:

hafizahsaan47@gmail.com