WITH the Senate set to begin a new session today, a relatively old issue is likely to come on the agenda again: the establishment of a constitutional court to sit alongside the Supreme Court and to deal specifically with matters of constitutional interpretation, as envisaged under the Charter of Democracy.
The historic 2006 agreement between the PPP and PML-N mooted the idea of a constitutional court in response to what was politically perceived to be a problem with the superior judiciary: under military dictatorships, the superior judiciary tended to validate distortions to the constitutional scheme of things.
The CoD purported to address that problem by recommending that for a six-year period, “A Federal Constitutional Court will be set up to resolve constitutional issues, giving equal representation to each of the federating units”.
With the regular Supreme Court left to deal with so-called regular criminal and civil cases, judges nominated to the constitutional court by parliament were to work on removing the distortions in the Constitution and implementing its federal character, which envisaged a great deal of autonomy for the provinces, unlike the more centralised structure introduced by Gen Pervez Musharraf and previous military dictators.
A constitutional court was always going to be an awkward fit for a system rooted in common law, which does not easily recognise the difference between constitutional matters and ‘regular’ criminal and civil cases.
In truth, the idea of a constitutional court itself had a hint of political expediency to it — an ad hoc way of dealing with lopsided institutional structures that kept civilian politicians at a disadvantage.
The PPP, which is again pushing for the issue to be brought back on the political agenda, also revived the idea of a constitutional court when it was struggling with the hyper-activism of the Iftikhar Chaudhry-led Supreme Court.
The PML-N is now apparently opposed to the idea of creating a constitutional court. What these partisan manoeuvrings overlook though are two things. One, the charter of democracy, while implemented to a great extent, still has important parts of it that remain to be operationalised. In particular, accountability and oversight of military-run institutions have been stillborn.
Two, for a parliament that has sanctioned military courts because the ordinary criminal justice system was deemed too flawed to deal with terrorism-related issues, there remains a shocking lack of parliamentary interest in reforming the criminal justice system.
The political energy that may be about to be directed at supporting or opposing the creation of a constitutional court would surely be better spent focused on basic judicial reforms.
Published in Dawn, October 5th, 2015
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