Why Pakistan needs a Constitutional Court

Given the timing of the proposed constitutional amendment and our traditional rhetorical approach to constitutional discourse, it is certainly easy to look past the legitimate benefits of establishing a Constitutional Court.

Nonetheless, such an institution will invariably resolve underlying issues in the current hierarchy of judicial institutions in Pakistan. In no way would the formation of a Constitutional Court destroy the judiciary as a pillar of the state – as is being claimed by its critics. In fact, it will strengthen its standing – as has been done across multiple jurisdictions in the rest of the world. Constitutional interpretation, the function of the Constitutional Court, has always been a means to strengthen the judiciary by keeping a check on the excessiveness of the legislature and the executive.

Per the bi-annual report on judicial statistics for the second half of 2023 published by The Law and Justice Commission of Pakistan, approximately 0.4 million cases are pending before the superior courts in Pakistan. The number of cases pending before the Supreme Court stands at around 60,000. An independent Constitutional Court will take away the burden of constitutional issues on the courts. It must be borne in mind that the backlog of cases does not exist because of the number of constitutional matters, but rather the time taken to adjudicate constitutional issues and the priority, albeit rightfully, surrendered to them.

The issue is further complicated when each provincial high court is adjudicating on the same constitutional issues. What this effectively does is that all the superior courts of the country are spending their valuable time resolving the same dispute, just at different places; and each court could, as happens often, arrive at a different conclusion which then again would have to be considered by the Supreme Court. All this happens while cases of civil and criminal nature, which have a direct impact on the lives of hundreds of thousands of people, remain pending. It frustrates ordinary litigants. It frustrates the wheels of justice. It frustrates the very constitutional scheme of our country.

Especially after the 18th Amendment, the superior courts have been burdened with the mammoth task of defining the constitutional limitations and powers of the provinces and the federation. With utmost respect, a chaotic approach to the implementation of the constitution and upholding its provisions cannot be allowed to stand and must be resolved in favour of constitutionality. A dedicated Constitutional Court, composed of constitutional experts, will streamline the decisions on constitutional issues and the law will attain more certainty and uniformity across all provinces.

No pillar of the state is above the constitution, and the three pillars, within their respective domain, must be subservient to the will of the people expressed through the scheme of the constitution. If the establishment of a Constitutional Court is what is needed at this point to iron out the wrinkles in the operations of our judiciary, then this must be done in the interest of rule of law, constitutional supremacy, and the people of Pakistan. It is, ultimately, the common citizen who benefits from the constitution being held and public bodies being kept within their limits – since that is the headlining function, or purpose, of a Constitutional Court.

The establishment of a Constitutional Court may seem like an alien and novel concept that is being suddenly forced upon Pakistan, but in reality, it has been on the democratic agenda for the past 18 years, as a proposal in the Charter of Democracy. Needless to remind ourselves that the Charter of Democracy was signed by the two most popular political leaders of Pakistan on behalf of their respective parties as a measure to end dictatorial rule, and transition towards a true democracy.

Constitutional courts have been in existence for decades in multiple jurisdictions across the globe and certainly in almost all of them it was a distressing task to define their jurisdiction. However, with time, constitutional courts did find their place within the framework. The German Constitutional Court underwent a similar process and now is labelled as one of the most powerful jurisdictions in Europe.

However, the reference to foreign jurisdictions wherein constitutional courts have been established does not in any way entail that we must adopt the same model. What must be done is to devise an institution and bestow upon it such jurisdiction as would be relevant and necessary to our legal, political and historical landscape.

An independent, dedicated Constitutional Court is not an attack on the independence of the judiciary or its strength as a pillar of the state. It will not strip the Supreme Court of its powers or make it redundant. All it would be is the sole judge on constitutional issues. It cannot be said that an independent and dedicated court would destroy the judiciary as a pillar of the state.

The Constitutional Court would not sit outside the realm of our current judiciary, but rather within it and would hold and exercise its authority as a pillar of the state- that is the judiciary. In fact, such an institution would strengthen the judiciary and improve its status as an independent pillar of the state.

No one can say that things are acceptable the way they are. The state of the judiciary, viz a viz the common citizen, is in absolute shambles. Access to justice and rule of law is a basic right. Yet we see people waiting for several years, if not decades, seeking justice in their criminal and civil cases. A Constitutional Court may not be the only solution, but it is the first major step towards judicial reforms. Its establishment will ensure that the high courts and Supreme Court dedicate their time to hearing criminal and civil cases, which affect the common citizen daily. As such, a dedicated Constitutional Court is the need of the hour and will turn into a beacon of hope for the nation.

In 1973, the founding fathers of the constitution, who were members of the Constituent Assembly, came up with the concept of the Senate. This was to be an indirectly elected body where all provinces were to have equal representation. At first sight, the framers of the constitution were diluting their powers by creating another legislature, an upper tier of parliament. However, the visionaries of that time knew full well that if Pakistan were to function and prosper as a federation, a Senate would be sine qua non, since it would ensure a level playing field for smaller provinces. Time is a testament, and history is a witness, that they were correct.

Today, we stand at a similar intersection where what we do as a nation will define the future of Pakistan and its ability to thrive as a successful federation. The elected representatives of the people of Pakistan want to create a provincially balanced judicial system, in the form of a Constitutional Court, which will have equal representation from all provinces. The vision for this court is to create and maintain a balance and inculcate in smaller provinces, a belief in judicial equality.

The preamble of the constitution of Pakistan ends as follows, “… through our representatives in the National Assembly, adopt, enact and give to ourselves, this constitution.”. The constitution was given by the people of Pakistan to themselves, it being a social contract between the people of this wonderful nation. Today, the same people, through their elected representatives, wish to strengthen the federation and promote judicial independence by enacting a constitutional court. Whether the people are successful or not will define the future of this nation, the cohesiveness of its federating units, and its fragile democracy.

Lest we forget: “Taqat ka Sar Chashma Awam Hain” (in Urdu transcript)

The writer is an advocate of the Supreme Court of Pakistan.