Many countries have established both a constitutional court and a supreme court to handle different aspects of their legal systems, particularly separating constitutional matters from other judicial issues. For instance, Germany, Italy, Spain, Austria, South Africa, and Poland have constitutional courts dedicated to ensuring laws comply with their constitutions, while their supreme courts handle civil and criminal cases. France’s Constitutional Council oversees constitutional matters, whereas the Court of Cassation deals with criminal and civil cases. Similarly, Russia, Turkey, Colombia, South Korea, Chile, and Portugal follow this model, with constitutional courts focusing on constitutional disputes and supreme courts addressing broader legal matters. This dual court system, prevalent in many European, Latin American, and African countries, allows for specialization in constitutional interpretation, unlike countries such as the United States, Canada, and the United Kingdom, where a single supreme court manages both constitutional and non-constitutional cases.
Though the concept of establishment of Constitutional Court is not new, the purpose of setting up the constitutional court differs in intent and purpose. In Pakistan, as against larger public good, the government is determined to neutralize the Supreme Court’s powers. This effort aims to ensure the government’s survival and circumvent the Supreme Court’s decisions, particularly those restoring PTI as a fully functional party, resolving election disputes on merit, and reclaiming women and minority seats allocated as political spoils to the ruling parties. Implementing the Supreme Court’s decisions would jeopardize the survival of the federal and Punjab provincial governments, as well as the Election Commission and the President’s office.
The government appears determined to revert to a colonial system where both executive and judicial powers fall under governmental control
Having failed to coerce the judiciary through force, the government is now intent on stripping the Supreme Court of its powers. It plans to establish a parallel “constitutional court,” under the pretext of expediting cases pending before the Supreme Court, despite many of these cases being of minor significance with little impact on the broader societal good.
The government appears determined to revert to a colonial system where both executive and judicial powers fall under governmental control. This move would most likely jeopardize democratic governance and potentially lead the country toward a totalitarian era, posing serious and dangerous implications for the nation and its people.
In our constitutional scheme, the Supreme Court acts as the ultimate arbiter of constitutional matters and has the authority to check the excesses of the executive and legislative branches. By creating a parallel “constitutional court,” the government could essentially sideline the Supreme Court whenever it finds its rulings inconvenient, leading to a subordination of the judiciary to the executive’s whims. For example in Poland, the government’s interference with the Constitutional Tribunal led to concerns from the European Union about a lack of judicial independence, resulting in democratic backsliding.
A constitutional court would most likely be composed of judges aligned with the government’s interests, allowing it to legitimize any unconstitutional actions essentially turning the judiciary into a rubber stamp for executive actions, which is characteristic of authoritarian regimes. For example in Venezuela, President Hugo Chávez packed the Supreme Tribunal of Justice with loyalists, enabling the government to override legal challenges, consolidate power, and effectively dismantle checks and balances. This allowed the executive branch to rule without constraint, moving the country toward authoritarianism.
The existence of two competing judicial authorities can create confusion, undermine the rule of law, and lead to constitutional chaos. When decisions are issued by a court that is seen as politically motivated, public trust in the judiciary and legal system diminishes, which is detrimental to democracy. For example in Turkey, the erosion of the Constitutional Court’s powers, along with the establishment of specialized courts that served the interests of the ruling party, led to arbitrary arrests and a compromised rule of law, pushing the country further into authoritarian rule. Over time, this paves the way for totalitarianism, where the separation of powers is merely cosmetic. For example in Egypt, President Abdel Fattah el-Sisi’s government passed constitutional amendments that expanded executive power and weakened judicial oversight. This led to a more authoritarian regime, with diminished democratic freedoms and civil liberties.
By sidelining the Supreme Court through a constitutional court, the government can operate without accountability, marginalizing the opposition, restricting media freedom, and infringing on citizens’ rights without fear of judicial intervention. For example in Russia, the Kremlin has effectively neutralized independent courts, allowing the government to suppress political dissent and opposition. If the government succeeds in establishing a constitutional court, it will have a mechanism to overrule any decision made by the Supreme Court that challenges the executive or legislative actions, rendering the existing judicial oversight irrelevant.
The Supreme Court’s role is to protect the constitution and uphold the rights of citizens, ensuring that no branch of government exceeds its authority. Introducing a parallel constitutional court would not only dilute this authority but also set a dangerous precedent where the judiciary’s power is determined by the government, which contradicts the very essence of a democratic state.
The writer is a former press secretary to the president; former press minister to the Embassy of Pakistan to France and former MD (SRBC).