Constitutional courts

Published October 5, 2015
A constitutional court is always going to be an awkward fit for a system rooted in common law.—Online/File
A constitutional court is always going to be an awkward fit for a system rooted in common law.—Online/File

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

On a mobile phone? Get the Dawn Mobile App: Apple Store | Google Play

Opinion

Editorial

Afghan turbulence
Updated 19 Mar, 2024

Afghan turbulence

RELATIONS between the newly formed government and Afghanistan’s de facto Taliban rulers have begun on an...
In disarray
19 Mar, 2024

In disarray

IT is clear that there is some bad blood within the PTI’s ranks. Ever since the PTI lost a key battle over ...
Festering wound
19 Mar, 2024

Festering wound

PROTESTS unfolded once more in Gwadar, this time against the alleged enforced disappearances of two young men, who...
Defining extremism
Updated 18 Mar, 2024

Defining extremism

Redefining extremism may well be the first step to clamping down on advocacy for Palestine.
Climate in focus
18 Mar, 2024

Climate in focus

IN a welcome order by the Supreme Court, the new government has been tasked with providing a report on actions taken...
Growing rabies concern
18 Mar, 2024

Growing rabies concern

DOG-BITE is an old problem in Pakistan. Amid a surfeit of public health challenges, rabies now seems poised to ...