The necessity of a Constitutional Court in the presence of the Supreme Court is a topic of considerable complexity, warranting in-depth consideration.
With the introduction of new judges, staff, salaries, and associated benefits, the question arises as to why an economically depressed nation should shoulder this additional burden. However, the unequivocal answer to this multifaceted question is a resounding “yes” – the need for a Constitutional Court is dire.
A substantial backlog of cases persists within the Supreme Court, with the total number of pending cases reaching 60,616 as of September 15, 2014. The timeline for the adjudication of these cases remains uncertain, as while elaborate judgments may require several months to be finalized, decisions in these cases could potentially extend over a decade or even longer. Furthermore, it is anticipated that additional cases will be brought before the court in the future, prompting contemplation on the trajectory of the court’s caseload.
In the preface to my book “Pas e Qanoon,” former Chief Justice Jawad S. Khawaja articulated that the adjudication of a civil case typically spans an average of 25 years before a final verdict is reached. The disconcerting reality surfaces when individuals are exonerated by the Supreme Court only to discover that the exonerated individual has already been executed. Some of those exonerated have already endured decades of incarceration. It raises the pertinent question of who will hold the independent judiciary accountable for the loss of life and the decades spent in prison.
Considering the Supreme Court’s track record in handling constitutional matters, it’s not unreasonable to suggest that removing constitutional issues from its jurisdiction could be a viable option.
While there may be multifaceted reasons for the protraction of dispensing justice, the primary factor lies in the exceptional handling of constitutional matters, which encumbers the progress of routine cases. Constitutional cases are expeditiously heard, with courts operating on public holidays, accepting applications even in the evening, and broadcasting live proceedings. Conversely, routine cases do not receive such benevolent treatment. The prevalence of minor political and constitutional cases has significantly impacted the entire nation, leading to a notable strain on the justice system. The inordinate amount of attention and time allocated to these cases has been a matter of concern? According to Bilawal Bhutto, constitutional cases, constituting only 15 percent, have monopolized 90 percent of the Supreme Court’s time.
This raises the pertinent question: Had these 15 percent of cases not been brought before the Supreme Court, would the number of pending cases exceed 60,000? If the number of pending cases does indeed surpass 60,000, and the Supreme Court is dedicating 90 percent of its time to a handful of constitutional cases, it is imperative to consider reallocating these cases to another court. By doing so, the Supreme Court can effectively address the backlog of over 60,000 cases, thus ensuring the timely dispensation of justice to the people.
Where is the justice that the highest court of the country has only 10 percent time for 85 percent of the cases and 90 percent time for 15 percent of the constitutional cases?
The Federal Constitutional Court offers several significant advantages. Firstly, when cases are brought before the Constitutional Court, the risk of arbitrary reinterpretation of the Constitution by a specific bench is minimized, bringing an end to the era of three-member benches with storied reputations. Secondly, the federation is strengthened as constitutional cases are adjudicated by judges from all provinces.
Thirdly, when a single court assumes the responsibility of adjudicating constitutional cases, as opposed to multiple benches , it serves to eliminate confusion arising from conflicting interpretations of the Constitution.
It is crucial to acknowledge that the performance of the Supreme Court in constitutional matters has not been commendable. The Supreme Court has introduced the Doctrine of Necessity and has justified martial law, while also granting dictators the authority to amend the Constitution. Considering the Supreme Court’s track record in handling constitutional matters, it’s not unreasonable to suggest that removing constitutional issues from its jurisdiction could be a viable option. In the context of establishing the Constitutional Court, two crucial aspects merit attention. Firstly, the appointment of judges should not be solely at the discretion of the government. A transparent mechanism devoid of the monopolization of different chambers is imperative. The current method of judge selection warrants reform to ensure impartiality and fairness. Secondly, given the Islamic nature of the Constitution, it is essential to include Islamic scholars as judges in the constitutional court. The Constitution is a serious matter; it cannot be entrusted solely to lawyers and judges. The inclusion of Islamic scholars would bring diverse perspectives and expertise to the court, aligning with the constitutional ethos.
The writer is a lawyer and author based at Islamabad. He tweets @m_asifmahmood.