October 22, 2024
By Xari Jalil
LAHORE
At the National Assembly session held late night on October 20, the chairperson of the Pakistan Peoples’ Party (PPP), Bilawal Bhutto-Zardari gave a rousing speech, outlining why he believed the need for a separate constitutional court was integral.
Ultimately the 26th Constitutional Amendment was passed in both houses of the parliament, but not without controversy and pushback.
The tweaks in the Constitutional Amendment have already been criticized by the civil society at large, including lawyers, journalists, and human rights activists who say that the changes take away the Supreme Court’s suo motu powers, and politicizing the appointment of the chief justice of Pakistan (CJP). The changes also aim to set the CJP’s term at three years while it empowers the prime minister to appoint the next CJP from among the three most senior SC judges.
However while civil society has been repeatedly questioning and even outrightly rejecting the 26th Constitutional Amendment, Bilawal in his speech put a spin on history, giving the impression that civil society had been actively demanding it.
“When Justice Dorab Patel formed the basis of the Human Rights Commission of Pakistan (HRCP), he spoke using whatever experience he had had in his life. In his speech at the launch of HRCP, Justice Patel said that there should be a constitutional court in Pakistan, so that the provinces get their equal share,” said Bilawal while giving a chronology of the ‘demand for a separate constitutional court’.
He then went on to refer to the Asma Jahangir Conference in 2022, (Constitutional Crisis in South Asia), and said that a panel session on separate constitutional courts had concluded that this was the need of the day.
“Justice Qazi Faez Isa and I were both part of the Asma Jahangir Conference held in Lahore in 2022,” he said. “He opened the conference and I closed it. There was a support for the constitutional court in the conference….and why? Because the civil society there, though the best solution to Pakistan’s problem of authoritarianism was the creation of a separate constitutional court.”
He added that Raza Rabbani who was on the panel had declared that if there was no constitutional court then at least there should be a separate constitutional bench.
THE AJCONF 22
In the session on the issue of the separate constitutional court, Rabbani, the seventh chairman of the Senate and former minister for Law and Justice, had made a long speech quoting the advantages of a separate constitutional court.
Most famously he referred to the Charter of Democracy signed in 2006, and added that there had been several demands that there needed to be a constitutional court.
“The motivation in establishing the Constitutional Court is to create a strong and specialized judicial type of body capable of enforcing a new constitutional deal. What is more important is that the court is also empowered to decide on abstract questions,” he said in his speech. “For example, the court may have the power to examine the constitutionality of a law even before it is passed by parliament. And I would like to lay emphasis particularly on this issue.”
Rabbani said that the following and were the powers that might be exercised by a constitutional court. “Number one, constitutional drafting jurisdiction that is controlling the Constitution itself; number two, judicial review of legislative Acts controlling the legislature; number three, jurisdiction over officials and agencies controlling the executive; number four, jurisdiction over political parties and elections controlling elections. It is not simply a court that adjudicates on constitutional disputes but has wide-ranging implications.”
Bringing up the Charter of Democracy, Rabbani said that in the CoD it was stated that a constitutional Court would come into existence.
“But then at the time when we were drafting the 18th Amendment, and which was an extensive period of time, something like over nine months, during that period, an extensive discussion was held on whether a constitutional court as envisaged by the charter of democracy was needed or not. We came to the conclusion at that time that at least for the moment, a constitutional Court was not needed,” said Rabbani. “And the reason for that being the complexity of the bars that are flowing from a constitutional Court. Number two, an additional structure was to be added to the federal judiciary. With already the (parallel) Federal Shariat Court and the Supreme Court, it was in our mind to do away with the FSC. But unfortunately, because we didn’t have the numbers in terms of a two-third majority, without the religious right supporting us, and then they brought in question of the entire 18th Amendment. Had any of the Islamic provisions in the Constitution be touched, therefore, we were compelled to continue with the present structure.”
The third reason he gave for not opting for a constitutional court was the volume of work.
“It is today that one finds that there is a spate of constitutional issues that are being raised in courts,” he said. “But in normal course, if governments are running according to the Constitution and if the system is functioning, then the quantum of work would not justify a court. We recommended that in the Supreme Court itself, there should be a constitutional bench which would look at constitutional issues.”
‘The Constitution Provides Solutions’
“I think what one needs to do is to look at the constitution itself,” said Raza Rabbani in the AJCONF session. “Because the constitution itself of 1973 provides for a number of solutions to various issues that arise between the federal government and the provinces. And one would then be questioning the fact, that if one was to look at the constitution, and if one was to follow the constitution, would litigation in the stricter sense of terms, really be necessary?”
The ‘All-Powerful Judiciary’
“In the aftermath of the lawyers’ movement in 2007, is Pakistan’s supreme court just too powerful a Supreme Court in a democracy,” questioned lawyer Saroop Ijaz addressing Rashid A Rizvi. Rizvi is a former justice of the Sindh High Court (SHC).
“Since after the lawyers’ movement which was meant for the independence of the judiciary, they do not have any limit of jurisdiction,” said Rizvi. “Their decisions are based much more on (personal) likes and dislikes, there are no regulatory provisions on how to deal with the suo moto cases, how to regulate urgent matters, old matters, and regular matters. They have already totally forgotten what was decided by their peers in 1950s and onwards.”
Rizvi said that the judiciary’s conduct had become so authoritative that even when a lawyer appears before the rostrum, the judges announce their decision to dismiss.
“I think the judiciary has become more powerful after 2007,” he continued. “At the time of the framing the 18th Amendment, they missed this opportunity to limit the jurisdiction of the Supreme Court and suo moto jurisdiction. They even failed to provide the appellate forum for a decision passed under Article 184(3). And that has made the judiciary unchanged. They have become an absolute power. And now, after the recent decision of judges on all suo moto matters, it is to be dealt with by the Chief Justice of Pakistan. He has become more authoritative than he should have been.”