Four months have elapsed since the establishment of the Constitutional Courts in Pakistan, and aside from the controversy surrounding its creation by the current Parliament, no major disputes have surfaced. Jurists, legal experts, and political activists who scrutinized the passage of the 27th Amendment and feared its potential to bolster non-democratic forces are now less adamant in their earlier criticisms. While it cannot be asserted that the court has strengthened the constitutional framework, it has also not attracted criticism for undermining democratic institutions.
A Necessary Redefinition of the Supreme Court's Role
Given the Supreme Court's contentious history, particularly its adjudication on constitutional matters, it was essential either to eliminate this role—which is impractical given Pakistan's political culture—or to redefine it as an appellate court or custodian of justice. The public must be shielded from the anarchy that could take root, for the greater good. Another frequently misunderstood aspect is the courts' involvement in unconstitutional actions by various institutions; this must be understood within proper legal, constitutional, and political contexts. Courts have historically provided legality to unconstitutional actions taken in Pakistan's legal and political history. However, this does not imply that if courts had refused to offer ad hoc frameworks for unconstitutional forces to rule, those forces would have ceased their actions.
The Limits of Judicial Power
Many would agree that courts alone are insufficient to halt unconstitutional actions by non-democratic institutions. The genuine criticism they deserve in this regard is the weakening of democratic institutions through legal means, such as ineligibility laws. That is where their responsibility lies. Opponents of the Constitutional Courts argued that the amendment was introduced to curb the Supreme Court's power in constitutional and other jurisdictions. However, since the establishment of the Constitutional Court, this argument has not gained traction, nor has it weakened the superior courts in any meaningful way.
The Retreat of Diplomacy in a Fragmented World
The real victim is the common citizen, who lacks the resources to fight for legal rights. Courts become embroiled in controversies and focus on political elite infighting rather than delivering justice to ordinary people. While the government's timing or intention may be flawed, the introduction of Constitutional Courts has, in my view, made the dispensation of justice easier. Since its formation, no major controversy has emerged, which is a reassuring development. This separation will help the Supreme Court deliver justice with greater clarity and focus on common citizens.
Historical Context and Future Directions
In Pakistan's legal history, superior courts have been judged not on their provision of justice to ordinary people but on major constitutional upheavals that came before them as constitutional questions, leading to controversies for being either supportive of dictators or partners with corrupt political elites. This has created a moment of unease for the judicial system. The real problem lies in situations where laws and principles do not support populist demands, or where both sides have strong public support. For instance, the Speaker/Deputy Speaker ruling in the last Parliament saw courts criticized as partisan by both political spectrums. The common citizen, lacking resources to fight for legal rights, suffers as courts focus on political elite infighting rather than providing justice.
Courts Should Avoid Power Struggles
In my view, it is not the courts' duty to determine the sovereign power of the country; that is the work of political forces and the public. Their primary duty is the dispensation of justice to common people, from which the law will take root in society. A study of Western legal and political history shows that courts remained focused on protecting the rights of ordinary citizens and did not become part of power struggles. This allowed them to control the unbridled powers of the bureaucracy, landed elites, 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 the best ruling class for the country, and let courts focus on protecting citizens' rights. Then we will see a marked difference regarding the public's legal and constitutional rights.
Arbitration vs. Justice: Where Should Courts Draw the Line?
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