We are a people prone to ascribing words or actions to a meaning of our own – something quite distinct from their universally accepted import. And, we can do so for the mundane as well as the more serious. For instance: an indicator of a vehicle on the motorway may not necessarily signify changing lanes; it can be a suggestion to overtake or not to overtake! More seriously, the term ‘fundamentalist’ is not necessarily understood to suggest a militant outlook on matters religious but as a matter of pride because we believe in the fundamentals of Islam! Must we treat the recognised legal concept of a ‘constitutional court’, which is predicated on a written constitution, in the same vein?
A ‘constitutional court’ is a European legal construct, born from Hans Kelsen’s theory to secure constitutional protections and control in a democratic dispensation. Its sole purpose is: to have constitutional review centralised in one single judicial body outside the normal structure of the judicial branch. Hence, it may never find acceptability in the English model of state governance or for that matter, legal systems like that in China, which espouse an aspirational constitution rather than a written one highlighting critical nuts and bolts. In Pakistan, we have been there and done that. The Federal Shariat Court is, by analogy (whether we like it or not), a ‘constitutional court’ in the true theoretical sense because (i) it has exclusive jurisdiction over a specified matter, that is, to determine questions of Islamic law, and (ii) it operates outside the traditional judicial branch. Thus, generic lambasting of this increasingly acceptable constitutional concept is reflective more of naiveté than it is of its understanding.
Legal systems around the world may be classified, broadly stated, into four categories: (i) common law jurisdictions; (ii) civil law jurisdictions, (iii) Islamic law jurisdictions, and (iv) hybrid jurisdictions. For removal of doubt, Pakistan, India, and South Africa – despite their common law heritage, are recognised as hybrid systems of law. In practice, there is no uniformity in any of these four systems of law when it comes to the establishment and operation of a ‘constitutional court’. Kelsen himself observed that it is impossible to propose a uniform solution as it must adopt specific characteristics of the political and constitutional culture of each state.
Essentially, a ‘constitutional court’ reflects the different understanding of the trichotomy of powers within a civil law jurisdiction. In the common law tradition, the Legislature and the Executive are subject to further segregation or devolution or inter se allocation of business of the state but, in the civil law system, there is recognition that allocation of business within the Judiciary is also beneficial to administration of justice. The establishment of a ‘constitutional court’, therefore, is not a negation of the theory of separation of powers; it is a different manifestation of its application. Not all civil law systems have a ‘constitutional court’. Austria, Belgium, France, Germany, Italy, Senegal, and Spain, and those influenced by them such as Columbia, Egypt, Indonesia, Poland, Russia, Korea, Turkey, Taiwan, and some Western African states have such a court while Argentina, Estonia, Japan, Myanmar, The Netherlands, Nordic countries (Denmark, Finland, Iceland), Philippines and Sweden do not.
It is disconcerting to imagine that the FCC, as envisaged, may translate into an additional parking spot for retiring or retired judges, whose performance at the court is laudable or that the Chief Justice of the FCC is the ultimate destination for the Chief Justice of the Supreme Court!
The fact that major Pakistani political parties resolved on May 14, 2006, by way of the Charter of Democracy, that a ‘Federal Constitutional Court’ (FCC) be established is understandable because the genesis of this construct is embedded in a reaction to authoritarian or totalitarian or military dictatorship experiences worldwide since the last 100 years. The modern state recognises its courts as guardians of constitutionalism and the sustainability of democratic institutions, as well as civil liberties. Hence, since 1990 this model spread in Western Europe, South America, and East Asia. It is seen as an instrument of securing a new constitutional paradigm whereunder a ‘constitutional court’ and the ‘supreme court’ travel towards the same destination – protection of constitutionalism and civil liberties, but not by the same route.
If the Charter of Democracy did indeed find motivation from historic non-democratic elements, the proposed 26th Amendment falls short of stated aspirations. Equal representation of each federating unit, for instance, in such a court is not on all fours, as well the agreement that judges of the FCC shall have no more than a six-year term. In the global experience, its membership is not limited to sitting or retired judges but includes legal scholars of merit and an accomplished cadre of politicians and bureaucrats. The proposed amendment entrenches the existing hegemony of judges. As lip service, lawyers are possible candidates but in reality, a rare deviation. It is disconcerting to imagine that the FCC, as envisaged, may translate into an additional parking spot for retiring or retired judges, whose performance at the court is laudable or that the Chief Justice of the FCC is the ultimate destination for the Chief Justice of the Supreme Court!
On the positive side, there is an implicit acknowledgment that it is not the structure of the judicature that is responsible for its lacking performance; it is those who occupy the coveted office, hence, the need for performance review of superior court judges. Whether the Judicial Commission of Pakistan, the appointment screening authority, should undertake such review or whether the Supreme Judicial Council, which is designed to monitor performance, is the better-suited body, is the subject of a separate debate. Given increasing misgivings about the delivery of justice to the general public, and the alleged propensity of judges to succumb to ulterior considerations, this particular aspect ought to attain constitutional bearings – regardless of whether the FCC becomes a reality.
Pre-eminently, in all jurisdictions where there is a ‘constitutional court’, there is (one or more) supreme court. So, no surprise there! Should FCC realise, our Supreme Court and the High Courts will learn to happily co-exist, with the latter hearing regular civil and criminal cases.
Supplanting an established legal system with a ‘constitutional court’ is a sure-shot recipe for complexity. It requires heightened maturity and commitment to constitutional values or else, it translates into what is known, the world over, as the ‘war of courts’ or the ‘war of judges
An amalgam of global experience reveals that a ‘constitutional court’ may have up to four distinct powers over (i) constitutional questions, that is, the constitution-making process, including amendments thereto; (ii) legislative acts, which may encompass ante factum – before the law is passed – powers (remember Hasba Bill and Practice & Procedure Act cases in Pakistan), ex post facto review of laws (recall 18thAmendment, NAB law, military courts, contempt law, election laws); (iii) executive action or decisions, like our writ jurisdiction, particularly quo warranto with added influence over accountability of public office holders and restoring trichotomy among state organs, including inter-governmental dispute resolution, and most importantly, perhaps, in our current dispensation; (iv) electoral process and political parties, including dissolution or merger of political parties and the conduct of elections.
Unlike the regular courts, a ‘constitutional court’ may be expected to decide questions in abstracto – without the need to remain pegged to facts in a given case or involvement of a particular party (the recent Reserved Seats case should ring a bell). Another notable distinction is that such a court may have the power to initiate or require legislation on a point (19th Amendment antecedents come to mind). Historically, this began in Austria in the 1920s with an abstracto review of legislation in mind but over the years, as the doctrine developed in Germany and Spain, the idea of individual complaints began to take root. Today, a ‘constitutional court’ may entertain cases in four distinct ways, namely, by way of (i) a reference from a public official, such as the President, the Speaker, the Ombudsperson, the Head of Election tribunal, or Human Rights Commission, or other independent agencies of the state; (ii) a reference or petition from members of the Legislature, particularly where there is a divided parliament; (iii) a reference from a court of general jurisdiction; and (iv) by direct individual petitions.
Seen in the above light, there is hardly any debate or attempt to persuade the efficacy of the proposed FCC, within the wider populace. How new issues arising from the FCC experiment will unfold or be tackled is a black hole. Supplanting an established legal system with a ‘constitutional court’ is a sure-shot recipe for complexity. It requires heightened maturity and commitment to constitutional values or else, it translates into what is known, the world over, as the ‘war of courts’ or the ‘war of judges. We should have learned from experience that the same old wine in a fancy new bottle doesn’t do the job. Public acceptability of the FCC would require deliberations and preparation of a comprehensive framework, including the delimitation of its remit and reconciling precedent on, among others, basic structure theory, independence of the judiciary, and access to justice, including the provision of affordable justice. The attempt to pass such a serious amendment without debate or letting anyone have sight of the proposed amendments is far more offensive to public conscience than a cabinet approval of a deal in a sealed envelope.
In our peculiar political reality, considering FCC at this time is indeed an attempt to reconfigure national politics. If the FCC were to truly emerge as an independent and robust court, anchored in pristine constitutional ethos – that makes the right decisions for the right reasons, won't it become a bigger risk to democracy?
With apology to Alexander Pope:
Forms of (justice) let fools contest
What is best administered is best.