Is a Constitutional Court the answer?

After the government failed to have its Constitution Amendment Bill secretly rubber-stamped at midnight by oblivious parliamentarians; some in the ruling coalition rushed to disassociate themselves.

They admitted to mistakes in the process and conceded some provisions of the proposed Bill – which endorsed military trials of civilians, placed officials acting under ‘national security laws’ beyond judicial scrutiny, replaced the present Supreme Court with a government-appointed Constitutional Court having extended tenure, and allowed high court judges to be transferred without their consent – needed fine-tuning. But, simultaneously, they (and especially the eloquent Bilawal Bhutto Zardari) have redoubled their efforts to explain why a new Constitutional Court is essential.

For the time being, let us abandon any scepticism about the timing and motivation of this Bill and the secrecy that (still) surrounds it. Let us assume a new Bill is duly unveiled for public scrutiny and feedback, followed by a real parliamentary debate. Let us even assume all its other problematic provisions are rectified.

Is there anything wrong with the basic idea of a new Constitutional Court? After all, it was one of the demands in the Charter of Democracy – widely hailed, then and now, as among the finer documents to emerge from Pakistani politics. With due respect to the drafters of the Charter, it was a bad idea then and a bad idea today.

First, let’s look at the origins of this idea of dedicated constitutional courts.

Most countries in the world either follow the common-law judicial system (like UK, US, Canada, Australia, India, Pakistan etc) or the civil-law judicial system (like Germany, France, Austria, Russia, South Korea etc).

Common-law countries have unified, generalized court systems (albeit with internal sub-divisions and some specialized tribunals). In common-law systems, a judge interprets and declares law. Their verdicts create judicial precedent (a source of law). Since judges are to declare law, it follows they must have the power to declare whether a particular law is constitutional or not. Although this issue did not arise in the UK at all (since it, uniquely, lacks a written constitution), but in all other common-law countries (which adopted written constitutions), ordinary courts perform this constitutional function too. The US Supreme Court firstly invalidated an Act of Congress in Marbury v Madison as far back as 1803 and is, thus, described as the earliest ‘constitutional court’.

Civil-law countries, on the other hand, operate parallel court systems for different types of cases. There are segregated courts and hierarchies for civil cases, criminal cases and administrative-law cases. Most importantly, in civil-law systems, judges do not declare law nor do their decisions form binding precedent for others. Lacking this declaratory power, judges in civil-law systems could not invalidate or refuse to recognize laws as being unconstitutional. As a result, civil-law judges tended, historically, to be more acquiescent in the face of state power.

Following the rise of authoritarianism and populism in continental Europe in the first half of the 20th century, however, jurist Hans Kelsen popularized the idea of another type of courts: dedicated constitutional courts that could review legislation on the touchstone of the national constitutions. Prior to that, in civil-law countries, constitutions were seen as merely documents of political intent and did not create any legal rights. Kelsen’s idea was first adopted by Austria in 1919 and eventually, by the end of the Second World War, spread to all (civil-law) European countries and their colonies.

The advent of dedicated constitutional courts in civil-law countries finally allowed their judges to perform a function ordinary judges in common-law jurisdictions were already performing for more than a century: protecting the constitutional liberties of citizens against excesses of state power.

The simplistic adaptation of an idea developed in relation to civil-law systems, divorced from its historical and operational context, into our common-law system is not only impracticable but will have an opposite effect to what is being claimed.

What are the justifications presented for a new Constitutional Court? First, that the Supreme Court spends too much time and attention on political and constitutional cases and neglects ordinary cases. A dedicated Constitutional Court would let the Supreme Court focus on the growing backlog of ordinary cases and alleviate judicial delays. Second, that the Supreme Court’s past record in constitutional cases has been patchy at best, and overly politicized and driven by personal preferences at worst.

If reducing judicial delays is actually the motivation behind the proposed Bill, it will only make matters worse. Why? Consider the facts and practicalities.

Judicial delays are, of course, a nightmare for ordinary litigants. But there are 58,000 pending cases in the Supreme Court, some 400,000 in the high courts and around 1.8 million cases in the lower courts. And any litigator will tell you over the total lifespan of a case litigated up to the Supreme Court, the time spent before the Supreme Court is, on average, the shortest and with fewest adjournments. So you might imagine the starting point for judicial reforms would be the courts where the most cases are pending and where most delays occur. You’d be wrong. Because, it is the Supreme Court which primarily concerns our politicians and military establishment. The courts and delays concerning the ordinary litigant are irrelevant.

Now, politicians tell you because the Supreme Court is so busy with all these “political cases”, they are not deciding ordinary cases. If true, there is an easy solution.

Politicians could stop filing such cases. The So PPP could have refrained from challenging Qasim Suri’s no-confidence ruling in the Supreme Court and fought its parliamentary battles in parliament, or left the wrong done to Zulfikar Ali Bhutto to be judged by history instead of asking the Supreme Court to answer a presidential reference. The PTI could have contested opponents in the electoral arena instead of seeking to judicially disqualify them, or used parliamentary debates against bad legislation, instead of challenging them in court. The PML-N could have raised public outrage against foreign interference instead of asking for a Memogate Commission. When any political leader personally approaches the court, it is a question of constitutional rights. But when his/her opponent does the same, it is a political question.

But leaving that aside, even the factual premise is wrong. Mr Bhutto Zardari claims 15 per cent of cases in the Supreme Court are ‘political’ but they take 90 per cent of its time. Even allowing for the exaggeration inherent in political rhetoric, the figures are plucked from thin air. The Supreme Court decides, on average, 15,000 cases every year. How many of those are ‘political’? Even by the most liberal definition, at best a couple of hundred. Of course, it is only that negligible fraction that consumes the airtime of our politicians and media – which is why you might take the impression this is all the Supreme Court does.

But logically, if the Supreme Court decides 15,000 cases a year and ‘political cases’ are about one per cent of that, taking away ‘political cases’ (even if you could determine what that meant) will not reduce the backlog. To actually reduce backlog, you would require more thoughtful and serious reforms such as curtailment of number of appeals, stricter thresholds for appeals to the Supreme Court, costs on frivolous appeals and reforms to trial and hearing procedures.

After all, which Supreme Court in the world spends a large part of its time deciding bail applications, or appeals against stay orders, or disputes between landlords and tenants? Or is bound (under Article 185), to entertain any appeal where a high court has reversed the finding of the court below it and the value of the subject matter of the case exceeds the princely sum of fifty thousand rupees? Predictably, the reforms being sold to us doesn’t bother with any tedious issues that might actually reduce backlog.

Now look at the practicalities of a new court. To have a dedicated court for constitutional cases; you must first define ‘constitutional cases’. One definition is: any case which seeks to declare a law unconstitutional. A second, wider, definition could be: any case where a law or the legality of government (in)action is required to be interpreted in light of guiding constitutional principles. The third, widest, definition could be: any kind of case (or any appeal therefrom) covered by Article 199 or Article 184 (3) of the constitution (which we presently call the constitutional or writ jurisdictions of the high courts and the Supreme Court).

What definition you adopt determines whether your new Constitutional Court has a case-load of a few hundred or tens of thousands. Incidentally, the leaked Bill used the third definition – thus requiring a majority of all cases pending before the Supreme Court to be transferred to the new court.

Under Article 199, high courts hear all sorts of challenges to acts of state functionaries. By sending all such appeals to the new Constitutional Court; you would have only effected a change in name and lumped the new court with all the burdens of the old court. This would not improve the functioning of the top court - anymore than General Zia’s renaming of parliament as Majlis-e-Shoora improved the functioning of parliamentarians.

But what if you defined ‘constitutional cases’ at its narrowest – being only cases where a law was sought to be declared unconstitutional? That might save the new court from being deluged with cases, but it might not serve the purposes of our government. After all, many of the cases that have so excited the imagination of our political classes - whether the Article 63-A case, or the Speaker’s Ruling case, or Nawaz Sharif’s disqualification - have not involved a challenge to the constitutionality of any law. Obviously (from the government’s perspective), these cases cannot be left at the mercy of the same Supreme Court.

Perhaps, then, you could take the middle approach and define ‘constitutional cases’ as being any case where any provisions of the constitution are being interpreted and reserve those cases for the new court? Here, you run into the problem that our whole judicial system is designed as per common-law principles with unified courts of general jurisdiction. Now the basis of any writ petition against governmental action is that the government is not properly interpreting or applying the law.

Almost invariably, there will also be a ground that, in doing so, the government is violating its constitutional obligation or violating a constitutional right of the petitioner. Or that the reason why the petitioner’s interpretation of the law is to be preferred is because it more closely adheres to the fundamental rights guaranteed under the constitution. So our high courts will continue hearing all such ‘constitutional cases’. But what happens in appeal? In civil-law jurisdictions, of course, the problem rarely arises because parallel, segregated court systems exist from the ground up.

One solution could be to bifurcate the appeal and allow the petitioner to agitate the legal and factual grounds before the Supreme Court and take the constitutional grounds to the new court. But you would effectively double the cost for litigants (besides adding to delays). Or you could provide, as the leaked Bill did, that cases with mixed legal and constitutional grounds would go to the new court. But that would encumber the new court with the same case-load you wanted to avoid. Besides, what if one party claimed a constitutional issue was involved while the other party denied it? The leaked Bill said the new court would decide any such dispute. If so, most of the time of the new court would be spent in deciding preliminary jurisdictional disputes.

It should be obvious, even to non-lawyers, that adding fresh layers of complexity and adjudicatory hierarchies (with potentially overlapping jurisdictions) does not generally shorten litigation. It does, of course, pad the pockets of lawyers.

But what about the other problems with our judiciary this new court shall solve? Admittedly, our Supreme Court does not have the most glorious history. It has had judges who violated their oaths and knelt to the whims of military dictators. It has had judges who played politics in robes. It has had judges who grossly overreached their powers. It has had incompetent, inefficient and even corrupt judges. And it has had jurists who, in terms of acumen, integrity and diligence, could stand among the best in the world. It is the story, in other words, of every institution in Pakistan.

An institution is as good as the people who serve in it. Setting up a new apex court with a different name will not change that reality. The new court will not have a magical gate denying entry to the timid, the ambitious, the venal or the vainglorious. A chief judge minded to abuse suo motu will not be deterred because he has a different title. (Of course, the real deterrence to abuse of suo motu established through the SC Practice & Procedure Committee has now been taken away by the recent ordinance - but that is a topic for another day).

You can, of course, tinker with the mechanism of appointing and removing judges – but that is as easily done with existing courts as with any new ones. There will never be a perfect methodology. We started with a system where governments appointed judges. We moved to one where chief justices appointed judges. For the last fifteen years, we have used a hybrid model involving input from the judiciary, government, bar and parliamentarians. There is, no doubt, still room for improvement. But how does creating a new court accomplish that? And if the problem of the Supreme Court is excessive politicization, does anyone imagine a new court where politicians have greater say in appointments will reduce politicization?

It is astonishing this even needs to be said, but shooting a patient in his head is rarely the most sensible cure for his illness. One does not tackle the venality of politicians by abolishing parliamentary democracy. The solution to military interference in civilian affairs is not to replace the Pakistan Army with a Revolutionary Guard. The answer to provincial misgovernance is not to abolish federalism.

Destroying one of the three independent pillars of state, on the pretext of fixing defects, is not an act of constitutional reform. It is violence upon the constitution and what Professor David Landau refers to as “abusive constitutionalism”. It follows a well-worn strategy used by authoritarian rulers to subjugate the judiciary through so-called constitutional reforms aimed at court-packing and/or stripping courts of their jurisdiction.

All our civilian politicians participating in this absurd exercise will live to rue this day. Perhaps, inevitably, as scholars Castillo-Ortiz and Roznai point out – when faced with acts of constitutional aggression aimed at undermining democracy and rule of law – it becomes the duty of all judges to conduct a “democratic self-defence of courts”.

The writer is a lawyer and former president of the Sindh High Court Bar Association. He tweets/ posts @SalAhmedPK