Four months have already passed since the establishment of the Constitutional Courts and no major controversy is in sight besides its own birth by the current Parliament. Jurists, legal experts and political activists who parsed the passing of the 27th Amendment and were wary of its use as a tool to strengthen non-democratic forces are not that adamant to pursue their past opinions about the Court. Though it cannot be said that it has strengthened the constitutional framework, it has also not brought about criticism of its use to subvert democratic institutions.
Considering the controversial past of the Supreme Court, mostly due to its adjudication on constitutional matters, it was necessary that this role of the Supreme Court either be finished, which is not possible because of Pakistan’s political culture, or its role be redefined as an appellate court or custodian of justice. The general public must be saved from anarchy taking root for the greater good of the public.
Another very misunderstood involvement of courts in unconstitutional actions of various institutions needs to be understood in the proper legal, constitutional and political circumstances. Courts are only responsible for providing legality to unconstitutional actions that have been taken in our legal and political history. That does not mean that if courts had refused to provide the ad hoc frameworks for unconstitutional forces to rule, they would have stopped. I hope many would agree with me that courts alone are not enough to stop unconstitutional actions of non-democratic institutions. The real criticism they deserve in this regard is the weakening of democratic institutions by different legal means, such as laws of ineligibility. That is what they are responsible for.
The real argument of the opponents of the Constitutional Courts was that this amendment was introduced to curb the Supreme Court’s power in constitutional and other jurisdictions. That argument has not been strengthened since the establishment of the Constitutional Court, nor has it weakened the superior courts in any meaningful way.
The real victim is the common man, who does not have the resources to fight for his legal rights; courts become controversial and more focused on political elite infighting rather than focused on providing justice to common people
The timing or intention of the government may be flawed, but the introduction of Constitutional Courts has, rather, in my view, made the dispensation of justice much easier. Since its formation, no major controversy has come to light, which in itself is an appeasing development. This separation will help the Supreme Court in delivering justice to the people with more clarity and focus on common citizens.
In our legal history, superior courts are judged not on the provision of justice to common people but rather on the pretext of major constitutional upheavals that came before courts as constitutional questions and later episodes of controversies for being either fond of dictators or partners of corrupt political elites, so a moment of qualm for the judicial system.
And the real problem lies in situations where laws and principles do not support populist demands from the public, or where both sides have strong public support. Take the example of the Speaker/Deputy Speaker ruling of the last Parliament, where courts were shunned for being partisan from both sides of the political spectrum. And the real victim is the common man, who does not have the resources to fight for his legal rights; courts become controversial and more focused on political elite infighting rather than focused on providing justice to common people.
In my view, it is not the courts’ duty to determine the sovereign power of the country; rather, it is the work of political forces and the public. Their primary duty is the dispensation of justice to common people, from where the law will take its root in society. A study of Western legal and political history suggests courts remained focused on protecting the rights of common people and did not become part of power struggles. This phenomenon gave them room to control the unbridled powers of the powerful bureaucracy and landed and political elites.
Courts should stay away from power struggles between different political or non-political forces. Let the Parliament, public and political class determine what is best as the ruling class for the country and focus on protecting the rights of citizens, and we will see a marked difference as far as the public and their legal and constitutional rights are concerned.