Welcome to BSO

Need for federal constitutional court

SENATOR SANAULLAH BALOCH

Pakistan’s political and judicial history is a mixture of military escapade, judicial submission and intentional de-
gradation and slander of state organs and institutions. Constitution in Pakistan, like other charters in the world,
provides basic fundamental guarantees to individuals and institutions, but it has never been implemented or
translated with its true spirit. Federal provincial relations, distribution of resources including separation of power
among government branches, human rights and equality before the law has always been capitulated by the
custodians of the contract. Constitutional mayhem and rightfulness of rule has always been a longstanding
subject in Pakistan’s political sphere. Recent judiciary versus executive crisis has exposed the fragile
institutional relations in Pakistan, whereas a subservient department with overwhelming monetary and military
power is superseding and undermining all national institution.

However such encroachment and violation is discouraged in true democracies through established institutions.
Federal Constitutional Courts in most of the countries have both role of umpire and custodian to protect the
rights of institutions and individuals to discourage any adventurism from self-proclaimed superior branch of
state.

Pakistan has gone through a complex constitutional crisis from time to time, and lack of standing judicial
system, to deal with delicate constitutional matters has resulted in to the breakup of the country and repeated
setback to the democracy.
Superior courts unnoticed the East Pakistan politico-military conflict that resulted in the breakup of the country.
Military operation in 1973, abolition of NAP government in Balochistan and ban on National Awami Party by the
central government was quietly ignored by the apex court. In recent past, Supreme Court dismisses the petition
to stop military operation in FATA and take notice of central government-military offensives against Baloch
people. The role of courts in questioning the use of force in federating units not only remained unquestioned, but
also the deaths of thousands of innocent citizens, arbitrary arrests, torture, violation of basic rights, ethnic
discrimination remained less the realm of ‘’Supreme” court.

If Pakistan had a Constitution on time and Constitutional Court, we would have not been in such fragile political
state. Since, Usif Patel (1955) to Zafar Ali Shah (2002) case, Federal Courts dealt the prime national
constitutional matters with imperfect approach. The manners in which constitutional questions have been
answered by the apex court has changed the course of political history and paved the way for powerful not for the
rightful to control the power corridor.

Superior judiciary with its limited occupation has never been a sunshade for political system. The judiciary not
only failed to stop frequent derailment of democracy and keep a check on extra-constitutiona l regime change,
but also repeatedly endorsed the consolidation of unrepresntative rules.

Paula R Newberg in her book published in 1995, has portrayed judiciary and its decision in following words,
“Pakistan’s courts and judges are cast as protectors of the constitution in a separation of powers system. But in
circumstances such as those just described they have usually found it expedient or necessary to accommodate
wrenching alterations of the constitution or grossly un-or anti-constitutional actions by the rulers of the day. They
have done so because they thought such deeds or misdeeds essential to the survival of the state or, more likely
and more often, to their own survival.

All courts in civilised societies apply Constitution and the law “without fear, favour or prejudice”. However,
empirical accounts show that the Judiciary in Pakistan has failed to play its due role during grave national crisis
and conflicts. Lack of fair and just system based on modern democratic principle has also caused mistrust and
split in society.

Absence of specific institutions to resolve various legal and constitutional disputes and check on government
bodies, resulted in misuse and abuse of authority. Widespread human rights abuses must be seen in broader
perspective, where the establishment, civil bureaucracy, law enforcement and security agencies have remained
unaffected from legal and judicial accountability. However, a group has always been benefited from
mismanagement of political and judicial system of the country which control military and civil services.

Unconstitutional rule also resulted in socio-economic disparities in the regions. Rulers avoiding mass
opposition adopted a policy to keep populous province happy through pumping resources and suppressing the
smaller provinces through guns and canons.
The political representatives from oppressed regions have reservation and fear to approach superior courts for
any political and social remedy, as superior judiciary has always been twisted and provided legitimacy to the
rulers for their extra constitutional acts.

Parliament in Pakistan is no more an institution to rectify the political imbalance. Grumbling provinces are less
represented in parliament and are not in a position to set right the rules.

There are a number of issues causing irritation and discomfort among the people of country living in remote and
neglected parts of the country. Issues like fair and just distribution of resources, federal provincial relations,
imbalanced development, and repeated excesses against minority provinces, defense spending, political
disorder, over centralisation of authority needs extensive political and legal fixing.

In Pakistan, lack of effective and independent judiciary and comprehensive system to deal with complicated
constitutional matters has resulted in a disorder in the social and political system. Reliant Judiciary with limited
understanding and capacity always was disposing off cases according to the will and wish of the ruling junta.
Law of necessity sort of decisions comes when there is no real and effective court available to read between the
lines.

Thousand of cases and appeals are pending for years in courts. According to 2005 , 37,122 appeals and 55,982
petitions are pending in high courts of four provinces of the country.

International experience indicates that socio-economic cost and time factor of justice has been improved in
societies due to the improved judicial system and existence of federal constitutional courts.

The Federal Constitutional Courts are an essential part for smooth running of a democratic political system. As
the guardian of the Basic Law, the Constitutional Court could play a significant role in umpiring the federal
system, resolving conflicts among branches of the national government, overseeing the process of
parliamentary democracy, monitoring the political parties, and reviewing restrictions on basic rights and liberties.

The article 153 of Pakistan’s constitution somehow guarantees the right of provinces through establishment of
Council of Common Interests. However, it is clear from council’s composition to the rules of procedure that not a
single province is in position to benefit or get remedy from the council except Punjab which dominate majority of
members of parliament. Council never been active and neither proved an arbitrative institution.

Constitutional courts are playing effective role and proved as a significant institution around the world to promote
democracy and rule of law, protect individual rights and resolving political conflicts in countries those believe in
federal system. Around the world 62 countries have Constitutional Courts or equivalent bodies to resolve
conflicts among branches of the government, overseeing the process of parliamentary democracy and reviewing
restrictions on fundamental rights.

The Constitutional courts are not an integral part of the regular judicial system in most of the countries, but rather
installed as a separate judicial institution. Constitutional Court is regarded as the highest courts when it comes
to the interpretation, protection and enforcement of the Constitution. However, in countries like USA, Canada,
Japan, Israel, Norway, India, Denmark, Estonia, Finland individuals and institutions rely on their independent,
transparent and reliable judicial system for constitutional matters and disputes.

Developing a just and acceptable political system is in the interest of the country. Unjust societies can not
sustain for long.
The German, French, Spanish and Italian Constitutional Courts tile the way for a cooperative federalism in these
countries. In Italy Constitutional Court task consist of monitoring changing economic and social realities and to
put together the relationship between state and regions less conflicting. Spanish Constitutional Court is the
supreme interpreter of the Constitution. Court has powers and jurisdiction to safeguard the fundamental rights
of the citizens through appeal for constitutional protection. CC in Korea established in 1988, aimed to fully
protect the people’s fundamental rights and effectively check governmental powers.
In South Africa Constitution delegated exclusive jurisdiction to the Constitutional Court in deciding disputes
about the powers and constitutional status of branches of government and decide about the constitutionality of
any amendment to the Constitution.
The German Federal Constitutional Court has been located in the city of Karlsruhe, intentionally dislocated from
the federal capital and the head office of the German intelligence in Munich, to avoid social and institutional
influence of executive.
What the people of Pakistan need in this critical phase of history, a separate, independent, responsible, reliable,
unbiased, capable federal constitutional court, located remotely from power orbit, represented equally by all four
provinces and endorsed by provincial assemblies with two-third majority to represent and protect the rights of
the individuals, federating units and federal parliamentary system.

The writer is a member of the Senate of Pakistan.
Email: