Constitutional courts

THE decision-makers in Rawalpindi and Islamabad should have taken the hint. Instead, their determination to have the controversial ‘constitutional package’ bulldozed through parliament with another attempt is now uniting the legal community in anger and indignation.
Over the weekend, some 300 lawyers from across the country — including some of the most notable names in the profession — signed on to an open letter addressed to the judges of the superior judiciary, urging them to refuse to take any part in a ‘constitutional court’ that is set up under this government’s secretive legislative agenda.

Saying that they recognise the Supreme Court and the high courts as the only ‘constitutional courts’ of the country, the lawyers warned the judiciary against repeating past mistakes, regretting, in particular, that “Our higher judiciary has, for many decades now, lent legitimacy to a sustained assault on our Constitution and on our democracy”.
Underlining their opposition to the proposal to set up a new ‘constitutional court’, these representatives of the legal community have made it clear that, in their eyes, such a court would be considered a PCO court, “and those who take the oath to serve on it will be PCO judges”.
This is unusually strong phrasing by the lawyers’ community. While they doubtless would have debated the merits and demerits of a constitutional court more congenially in a different context, right now, the brightest minds in the profession are seeing it as an existential challenge: a move that represents a continuation of the series of assaults launched by military dictators on Pakistan’s constitutional order in the past.
There is no question that the timing of the move has tainted its intent — perhaps irrevocably. After all, the government has made it clear that it has little regard for the judiciary and its prerogatives. Perhaps the proposal would have been seen more charitably had the government demonstrated that it is as subservient to the law like everyone else. Instead, it chose to disregard, even sabotage, express orders of the Supreme Court on multiple occasions, with the latest being in the reserved seats case.

Given that it has established that it will not obey legal authority except when it is bent in its favour, how can it expect any court established by it to be seen as fair and impartial? It is even more troubling that the government wants to handpick the judge who will sit atop this proposed constitutional court. This will not only compromise the new court further but also potentially sully the reputation of whichever judge agrees to lead it.
The lawyers have agreed that they will not engage with this idea because they do not see it as rooted in good faith. The judiciary, too, must soon make its position known.
Published in Dawn, October 2nd, 2024