Constitutional courts – 31 May 2023

THIS government`s legislative interventions will be remembered for making even good things seem bad because of how cynical and self-serving the intentions behind each appear to have been. According to news reports, lawyer Irfan Qadir, recently reappointed as special assistant to the prime minister on legal reforms and accountability, has reignited a discussion on the possibility of establishing a constitutional court to work alongside the Supreme Court. The creation of a separate court to deal with the constitutionality of various parliamentary actions and legislations was a proposal jointly agreed to by the PPP and the PML-N under the Charter of Democracy signed in 2006. It was never really pursued with the required seriousness thereafter, but the PDM now feels the need to revisit it. The question is, why? Mr Qadir has said that the proposed constitutional court would be composed of retired, `non-controversial chief justices`, along with judges drawn from the superior judiciary as well as parliamentarians with legal expertise. He has presented such a court as a solution to the many challenges dogging the Supreme Court, which, he believes, are preventing it from issuing `unbiased` verdicts. While the idea may not be without its merits, the establishment of a constitutional court cannot be done without national consensus or enacted through a parliament that is not truly representative of the people. This government, which has denied the public their right to participate in the democratic process by refusing to hold due elections to the KP and Punjab assemblies, has lost whatever little moral authority it had to make such decisions on their behalf. It is also rather unseemly that this proposal has been tabled not because it is a required next step in the evolution of the Pakistani judicial system, but because the government considers it a power play in its confrontation with the Supreme Court. The question will, therefore, be asked: is this good for the country, or just good for the PDM? The idea of constitutional courts is not unheard of more than five dozen countries have them in place. It is also not a bad one, considering the massive and continuously increasing backlog of cases pending before Supreme Court justices, who must currently deal with both pressing constitutional matters as well as regular criminal and civil appeals. Splitting the workload between two courts could greatly help ease this pressure. A separate constitutional court would also utilise the experience and expertise of retired judges, whose accumulated wisdom is dispensed with rather early under the Pakistani system compared to, for example, the US supreme court, which appoints its justices for life. Clearly, this proposal could have been considerably better received had it not seemed like yet another thinly disguised attempt to encroach upon the Supreme Court`s domain.

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