Constitutional Court – Way Forward
Publishing date: 23 September 2024
Published in: The Nation
Parliamentary legislative competence, globally defined, refers to a parliament’s authority to enact or amend the Constitution and make or repeal laws within constitutional boundaries. Article 239 of the Pakistani Constitution grants Parliament the power to alter or amend any constitutional provision with a two-thirds majority of its total membership. Since the 1973 Constitution was promulgated, Parliament has passed 25 amendments. Notably, the Supreme Court of Pakistan has neither declared any amendment ultra vires nor ruled any as contrary to the Constitution’s basic structure, despite possessing the power of judicial review.
The proposed 26th Constitutional Amendment Bill, 2024, seeks to introduce several changes, including amendments to Articles 17, 48, 51, 63A, 106, 175, 175A, 181, 184, 185, 186, 187, 200, and 209. Key provisions include the establishment of a Constitutional Court to handle cases under Articles 184 and 186, changes to the judicial and parliamentary commission for appointing superior court judges under Article 175A, revisions to the defection clause under Article 63A, accountability measures for judges through amendments to Article 209, and provisions for the transfer of judges between High Courts under Article 200.
Articles 175 onwards of the Constitution address the composition, jurisdiction, and operations of the Supreme Court, Federal Shariat Court, and High Courts. They define the hierarchical structure of the judiciary and outline the jurisdiction and separation of powers between the judiciary and other state institutions. Parliament holds the sole authority to determine the jurisdiction of courts and may, with a two-thirds majority, assign, modify, or transfer jurisdiction between courts, as seen in other parliamentary democracies.
The need for a Constitutional Court and reforms in the appointment and removal of judges, particularly in superior courts, has been a recurring topic in legal and political debates. Despite various discussions, the idea of establishing a separate Constitutional Court has not been realised due to political conflicts. However, the Charter of Democracy, signed by major political parties in 2006, endorsed the creation of such a court alongside the Supreme Court, a commitment still recognised by these parties.
The demand for a Constitutional Court in Pakistan mirrors international trends, where courts focus exclusively on constitutional matters, fundamental rights, and intra-governmental disputes. These courts serve as mechanisms for judicial review, ensuring that legislative and executive actions adhere to constitutional principles.
Globally, the concept of a Constitutional Court is widely accepted and does not conflict with the principles of judicial independence and the separation of powers. Seventy countries, including Germany, Italy, Austria, France, Spain, Belgium, Russia, South Africa, Egypt, and Brazil, have both Supreme Courts and Constitutional Courts. Judges in these courts are typically appointed through a parliamentary process with set tenures.
A primary driver for establishing a Constitutional Court in Pakistan is the Supreme Court’s backlog of nearly 60,000 cases. This concept aims to expedite case resolution, particularly those affecting ordinary citizens, reduce judicial activism, and settle intergovernmental disputes efficiently. Additionally, it would provide a dedicated forum for constitutional interpretation and enforcement.
Establishing a Constitutional Court is a sound and legal move by Parliament to ensure the interpretation and enforcement of the Constitution, resolve intra-governmental disputes, and protect human rights. However, this must be achieved through transparency, consensus, and a focus on maintaining the separation of powers and upholding the rule of law. Achieving these goals will be a significant challenge for both Parliament and the new Constitutional Court.
In addition to these proposals, the following measures could improve Pakistan’s justice system:
The Constitutional Court should be established as a separate entity from the Supreme Court, focusing exclusively on constitutional matters, human rights issues, and intergovernmental disputes while maintaining its independence. Transparent criteria should be suggested for the appointment and retirement of its judges.
The court’s composition and jurisdiction should be clearly defined, with courts established in each province and Islamabad. Judges of the Constitutional Court should include at least 40% of top Supreme Court lawyers.
Fundamental rights should be extended to include Articles 32, 34, and 37, which address state welfare and local government empowerment.
Article 175A should be amended to clarify the mandate, composition, and procedures for filling High Court vacancies. A Judicial Commission, including members from both the opposition and government, could facilitate the appointment of judges to the Supreme Court and High Courts.
Articles 178 and 194 should be amended to appoint the Chief Justices of the Supreme Court and High Courts from the most senior judges. Judges who are bypassed for promotion should be retired.
The 2023 Practice and Procedure Act should be extended to the High Courts and the Constitutional Court, particularly regarding case assignment, bench composition, and matters of public and constitutional interest.
A six-month time limit should be set for deciding cases before the Constitutional Court, Supreme Court, and High Courts.
The Supreme Judicial Council’s authority under Article 209 should be expanded to assess the performance of superior court judges, with five senior Supreme Court judges and five High Court Chief Justices included in the council.
The retirement age for judges should remain unchanged, and no extensions should be granted to Supreme Court or High Court judges. At least 40% of Supreme Court judges should be appointed from the bar, as envisioned in Article 177.
The transfer of judges between High Courts under Article 200 should require a two-thirds majority decision of the combined Judicial Commission.
Police and investigative reforms, along with enhanced law enforcement capacity, should be implemented nationwide in accordance with the Police Order of 2002.
Legal reforms in the High Courts and district courts should aim to ensure the swift delivery of justice.
Alternative Dispute Resolution mechanisms should be strengthened at all judicial levels.
A full-house committee from both the Senate and National Assembly should be formed to review and overhaul the criminal, administrative, accountability, regulatory, taxation, and civil justice systems. Key objectives should include improving judicial transparency, enhancing access to justice, reducing case backlogs, and simplifying court procedures.
In summary, Parliament must prioritise the establishment of a strong, efficient, and timely justice system in Pakistan. This can be achieved by coordinating with stakeholders, engaging in dialogue with political parties, and implementing constitutional, institutional, legal, and technical reforms to ensure a fair and effective judiciary.