In defence of a new court

Constitutional courts exist in both common law and civil law countries, though they take different forms. In civil law countries, these courts are typically separate, specialized institutions, while in common law countries, constitutional matters are often handled by the general judiciary, particularly supreme courts with broad powers of judicial review. However, some common law countries, like South Africa, have adopted dedicated Constitutional Courts.

There has been consistent demand from inside and outside parliament, particularly from political parties, for an exclusive court to handle matters related to constitutional and legal interpretation. This court would deal with the enforcement of fundamental rights and intergovernmental issues under one umbrella, from the federal capital to the provinces, and would be known as the Constitutional Court.

The establishment of a Constitutional Court is not at odds with the concept of separation of powers or the independence of the judiciary. By creating such a court in Pakistan, there would be no compromise on the enforcement of fundamental rights granted to citizens by the constitution. Instead, there would simply be a transfer of jurisdiction from the existing Supreme Court and high courts, as outlined under Articles 184(3) and 199, respectively, to the newly proposed Constitutional Court through a constitutional amendment.

This new court would ensure uniformity and clarity in jurisdiction to handle such matters in a country like Pakistan, with its federating units. It would allow the Supreme Court and high courts to focus their energy, time, and resources on the early resolution of legal issues affecting common citizens, addressing the significant backlog and making the regular justice system more efficient. Therefore, establishing a Constitutional Court in Pakistan requires a clear and strategic roadmap to ensure its successful implementation and long-term effectiveness.

While Pakistan has a robust judiciary, with the Supreme Court holding constitutional jurisdiction, the establishment of a dedicated Constitutional Court could offer several advantages. In many cases, existing judicial systems are overburdened with a wide range of civil, criminal, and administrative cases, which can slow the resolution of crucial constitutional matters when they are handled by the general judiciary.

The establishment of Constitutional Courts has proven successful in many countries, including those with both civil and common law systems. Although the structure and jurisdiction of these courts vary, their successes offer valuable lessons for Pakistan. Countries such as Germany, South Africa, and Italy have established dedicated constitutional courts, providing a model that Pakistan could benefit from.

With the increasing volume of constitutional work and the rise in cases filed against government bodies, Pakistan’s Supreme Court and high courts have become overburdened. As a result, their core appellate functions have suffered, leading to significant case backlogs at every level of the judicial system. Too much time is being spent on civil, criminal, and private litigation that often spans decades, leaving our justice system vulnerable and contributing to its low ranking within South Asia.

Currently, the Supreme Court of Pakistan handles both constitutional and general legal matters, leading to a significant backlog and delays in the delivery of justice. Establishing a dedicated Constitutional Court could alleviate this burden by focusing on complex constitutional issues, allowing the Supreme Court and high courts to concentrate on other cases, particularly those within their appellate jurisdiction.

The first step towards this reform would be passing a constitutional amendment under Article 239, which would create the Constitutional Court. This requires broad political consensus in parliament, as constitutional amendments need a two-thirds majority. It is crucial for all political stakeholders to recognize the court’s potential in promoting stability and justice, thereby reducing resistance. Following the amendment, specific laws must be enacted to define the court’s jurisdiction, structure, and powers.

A Constitutional Court in Pakistan should focus exclusively on constitutional matters, such as disputes over fundamental rights and federal-provincial tensions. By providing authoritative rulings, it would clarify ambiguities in the constitution, creating a more stable legal framework and reducing the risk of constitutional crises that have historically fueled political unrest. The court’s role would be to ensure that all laws and executive actions comply with the constitution, reinforcing rule of law.

Given Pakistan’s federal structure, the Constitutional Court would also serve as an impartial arbiter in disputes between the central and provincial governments, ensuring both operate within their constitutional limits. Additionally, it would act as a neutral body to resolve conflicts between the executive, legislature, and judiciary, helping to prevent political deadlock or instability.

To succeed, the court should have a clearly defined mandate, avoiding jurisdictional overlap with other courts. Judges must be selected for their expertise in constitutional law and impartiality. Timely case resolution is crucial to preventing the backlog issues that plague Pakistan’s current judicial system.

A dedicated Constitutional Court should focus exclusively on interpreting the constitution, resolving disputes between branches of government, and safeguarding fundamental rights. This separation would enable the current Supreme Court to concentrate on its appellate duties. A Constitutional Court could strengthen the protection of fundamental rights by promptly addressing violations and ensuring that laws and government actions align with the Constitution.

It is important to clarify that, while the Supreme Court would remain the apex court for non-constitutional matters, finality should be granted to constitutional rulings made by the Constitutional Court.

The success of a Constitutional Court would rely on adopting best practices and maintaining clarity in its jurisdiction, ensuring independence, efficiency, and impartiality. Lessons from constitutional courts worldwide can help Pakistan establish a court that strengthens democracy, upholds rule of law, and ensures constitutional governance.

The writer is an advocate of the Supreme Court of Pakistan. He can be reached at: hafizahsaan47@gmail.com