Daily Times

Constitutional Courts are found in both common law and civil law countries, but they take different forms. In civil law countries, they are typically separate, specialized courts, while in common law countries, constitutional matters are often handled by the general judiciary, especially by Supreme Courts with broad powers of judicial review. However, some common law countries, such as South Africa, have adopted a dedicated Constitutional Court. Thus, there has been a consistent demand inside and outside Parliament, especially from all political parties, for an exclusive court to handle matters related to constitutional and legal interpretation, dealing with the enforcement of fundamental rights and inter-governmental issues under one umbrella from the capital to the provinces, known as the Constitutional Court.

The establishment of Constitutional Court is not at all against the concept of separation of powers and independence of judiciary, and by establishing such court in Pakistan there will be no compromise or redundancy over enforcement of fundamental rights as granted to the citizens of Pakistan in 1973 Constitution but there will be only transfer of jurisdiction from the present Supreme Court and High Courts given under Article 184(3) and 199 of the Constitution respectively to the newly proposed Constitutional Court through the proposed constitutional amendment.

The new proposed Constitutional court would ensure uniformity and a clear-cut ambit of jurisdiction to deal with such issues in a country like Pakistan, which consists of federating units. It would allow the maximum energy, time, and resources of the Supreme Court and high courts to focus on the early disposal of the legal matters of common citizens and address the reality of huge backlogs, making the regular and appellate justice system more vibrant and effective. Therefore, the establishment of a Constitutional Court in Pakistan requires a clear and strategic roadmap to ensure its successful implementation and long-term effectiveness.

The necessity of a Constitutional Court for Pakistan is no doubt a complex issue, given the country’s legal, political, and historical context. While Pakistan has a robust judiciary with the Supreme Court holding constitutional jurisdiction, establishing a dedicated Constitutional Court could have several advantages.

The Constitutional Court system offers several distinctive advantages that make it particularly valuable for countries seeking to ensure the supremacy of their constitutions, protect rights, and maintain democratic governance. In many countries, existing judicial systems are overburdened with a wide range of civil, criminal, and administrative cases. Incorporating constitutional cases into the general judiciary can slow down the resolution of vital constitutional matters. This demonstrates that the concept of constitutional review and protection of constitutional principles is adaptable to both legal traditions.

The establishment of Constitutional Courts has been a successful experiment in many countries, including both civil law and common law systems. While the structure and jurisdiction of these courts vary, their successes provide valuable lessons for Pakistan. Many countries, including Germany, South Africa, and Italy, have dedicated Constitutional Courts, ensuring a specialized and expedited focus on constitutional matters, providing a model that Pakistan could benefit from.

There is no doubt that with the passage of increased constitutional work and the rise in cases filed against government organizations, our Supreme Court and high courts have become overburdened. Their actual appellate work has seriously suffered, resulting in a huge case pendency at every stage of the Pakistani justice system. Too much time is being spent on the culmination of civil, criminal, and private litigation spanning decades, making the Pakistani justice system vulnerable and giving it the lowest ranking in South Asia.

Currently, the Supreme Court of Pakistan handles both constitutional and general legal matters resultantly there is a huge backlog and delay in provision of justice. A new Constitutional Court can ease this burden by handling complex constitutional issues, allowing the Supreme Court and High Courts to focus on other types of cases especially of their appellate jurisdiction.

The first step for going this side would be to pass a constitutional amendment under Article 239 of the Constitution that creates the Constitutional Court. This would require a broad political consensus in Parliament, as amending the Constitution needs a two-thirds majority. It’s essential that all political stakeholders understand the value of the court in promoting stability and justice, thus reducing political resistance. After the constitutional amendment, specific laws must be enacted to define the court’s jurisdiction, structure, and powers.

The Constitutional court should handle only with clear jurisdiction of constitutional matters, including constitutional disputes, fundamental rights violations, and federal-provincial disputes both at federal and provincial levels. A dedicated Constitutional Court would surely provide authoritative rulings on constitutional issues, helping to clarify any ambiguities in the Constitution.

Over time, this would lead to a more stable constitutional framework, preventing frequent constitutional crises or misinterpretations that have historically led to political unrest in Pakistan. With a focus on ensuring that all laws and executive actions comply with the Constitution, the court would reinforce the rule of law, reducing the risk of unconstitutional practices by the government or any other institution and ensuring that all actions are legally grounded.

Pakistan’s federal structure often faces tensions between the central government and provincial governments. The Constitutional Court would be in a strong position to arbitrate such disputes fairly and consistently, ensuring that both federal and provincial governments operate within their regular framework of jurisdiction provided under the Constitution.

The Constitutional Court should serve as a neutral body to resolve political disputes, including those between the executive, legislature, and judiciary. By offering a transparent, legal resolution to such conflicts, the Constitutional Court can prevent political deadlock, instability, or even military interventions that have plagued Pakistan’s history.

The Constitutional Court can act as a check against executive overreach or legislative encroachment, ensuring that the principles of separation of powers are upheld, thus preventing the concentration of power and fostering a balanced governance system.

As seen in Germany and South Africa, a clearly defined mandate – focusing on constitutional interpretation and protection of rights – is essential to avoid jurisdictional conflicts with other courts. Careful selection of judges is critical for ensuring the Constitutional Court’s success. Judges should be selected based on their expertise in constitutional law and their impartiality. Judges on the Constitutional Court should receive specialized training in constitutional law, comparative jurisprudence, and international human rights law. For the court to be effective, it must handle cases in a timely and efficient manner. Introducing strict timelines for case hearings and judgments will ensure swift resolution of constitutional matters, preventing the backlog issues faced by other courts in Pakistan.

Therefore, in view of above, 7aA dedicated Constitutional Court should exclusively focus in future on interpreting the Constitution, resolving disputes between branches of government, and safeguarding fundamental rights. This separation would allow the current Supreme Court to focus on its appellate responsibilities while ensuring expedited resolution of constitutional cases. A Constitutional Court can play a crucial role in strengthening the protection of fundamental rights by swiftly addressing violations and ensuring that laws and government actions conform to the Constitution. It should also be clarified that the Supreme Court remains the apex court for non-constitutional matters but should allow finality in constitutional rulings made by the Constitutional Court.

The success of a Constitutional Court would entirely depend on the implementation of best practices and clarity of its jurisdiction, ensuring its independence, efficiency, and impartiality. These best practices, drawn from the experiences of constitutional courts around the world, would help the court function effectively in safeguarding the Constitution, protecting rights, and mediating disputes between branches of government.

By learning from the successes of Constitutional Courts in countries with diverse legal systems, Pakistan can develop a court that strengthens its democracy, upholds the rule of law, and ensures constitutional governance. The court would be instrumental in resolving constitutional crises, protecting fundamental rights, and fostering a culture of constitutionalism.

The writer is a practicing lawyer at Supreme Court and has served as Chairman, Federal Excise & Sales Tax Appellate Tribunal and Senior Advisor Federal Ombudsman. Email: hafizahsaan47@gmail.com