As Pakistan navigates its intricate constitutional landscape, judicial reform has become a pressing issue. The proposal to establish a Federal Constitutional Court (FCC), spearheaded by Pakistan People’s Party (PPP) Chairman Bilawal Bhutto-Zardari, has gained renewed momentum.
This idea, long advocated by the PPP and reflected in its election manifestos, forms part of its proposed 26th Constitutional Amendment draft. At its core is the creation of a specialized court to handle constitutional matters, aligning closely with the Charter of Democracy (CoD), signed by Shaheed Mohtarma Benazir Bhutto and Mian Nawaz Sharif in 2006 and later endorsed by other leaders, including Imran Khan.
However, the recent meeting between Chairman Bilawal Bhutto-Zardari with Maulana Fazlur Rahman, and later between President Zardari, Mian Nawaz Sharif, Chairman Bilawal Bhutto-Zardari, Prime Minister Shabaz Sharif and Maulana Fazlur Rahman has given rise to an alternative proposal: establishing a federal constitutional bench within the Supreme Court. This consensus-based approach seeks to balance the PPP’s push for judicial independence with the need for consensus, potentially offering a path forward in reforming Pakistan’s judiciary while maintaining broad political support.
Upholding the CoD’s Legacy: PPP’s Push for Judicial Reforms
The Charter of Democracy marked a turning point in Pakistan’s political history, signaling a joint effort by Shaheed Mohtarma Benazir Bhutto and Mian Nawaz Sharif to restore democracy, civil liberties, and the rule of law after years of military rule. Central to this vision was judicial independence—a goal the PPP has consistently championed in its electoral campaigns.
Chairman Bilawal Bhutto-Zardari’s proposal for a Federal Constitutional Court embodies these values, offering a forum to resolve constitutional disputes free from political bias. The FCC would relieve the Supreme Court’s caseload by focusing solely on constitutional issues. At present, almost 90% of Supreme Court’s time is spent on hearing 10% or so cases of political and constitutional nature.
The meeting between key political leaders has prompted discussions on an alternative: a federal constitutional bench within the Supreme Court. While this may lack the specialization of an independent FCC, it could serve as a middle ground, preserving political consensus and reforming the judiciary within its current structure.
Reforming the Appointment Process: Judicial Commission with Parliamentary Oversight
A central tenet of the CoD is ensuring judicial independence through transparent appointments. The proposed reforms include an empowered judicial commission, also comprising members of Parliament, responsible for appointments in superior judiciary including either to the FCC or the federal constitutional bench. This would enhance accountability and ensure that merit, rather than political influence, guides judicial appointments.
Further strengthening the judiciary, the selection of the Chief Justice should involve choosing from a panel of the three senior-most judges rather than relying solely on seniority. This measure would promote merit and help balance judicial power.
Ensuring Equal Provincial Representation
In both the FCC and the federal constitutional bench models, the PPP emphasizes equal provincial representation. Including judges from all provinces would protect provincial rights and prevent any one region from dominating the judicial process. This reflects the PPP’s longstanding commitment to a balanced federation, a commitment underscored by the party’s role in the passage of the 18th Amendment, which devolved powers to the provinces.
The proposed 26th Amendment and the CoD’s Vision: Navigating Political Realities
The PPP’s desire for judicial reforms explicitly calls for the establishment of the Federal Constitutional Court. However, in light of the recent political developments and the need to build consensus, particularly with the JUI, the federal constitutional bench within the Supreme Court has emerged as a potential alternative. While the FCC remains the ideal model in the PPP’s view, the constitutional bench could provide a viable alternative forum for addressing constitutional disputes within the existing judicial system.
Both models—the FCC and the constitutional bench—would be tasked with resolving constitutional matters impartially, insulated from political manipulation. The reformed judicial commission overseeing appointments would ensure that merit, transparency, and accountability remain central to these reforms.
Safeguarding Provincial Autonomy and Judicial Independence
The PPP’s commitment to provincial autonomy, as enshrined in the 18th Amendment, remains a cornerstone of its reform agenda. The FCC, or alternatively the constitutional bench, could serve as a neutral body to adjudicate federal-provincial and inter provincial disputes and ensure provincial rights are protected. Equal provincial representation in judicial appointments would guarantee a fair and balanced judiciary, free from domination by any one province.
Moreover, both the FCC and the federal constitutional bench would advance the CoD’s vision of judicial independence. The inclusion of parliamentarians in the judicial commission for appointments and the proposal for selecting the Chief Justice from amongst the three senior most judges would further reinforce merit-based and politically neutral judicial appointments.
Upholding Fundamental Rights
The PPP has long championed fundamental rights, including human rights, women’s rights, and minority rights. A Federal Constitutional Court focused on constitutional issues would be well-positioned to safeguard these rights, offering timely rulings on constitutional issues. Similarly, the federal constitutional bench, though integrated within the Supreme Court, could also provide a platform for addressing these issues as well as fundamental rights violations.
Lessons from International Models and the Path Forward
While the establishment of an independent constitutional court remains, the federal constitutional bench could serve as a practical alternative ensuring that constitutional disputes receive focused attention.
Conclusion: Realizing the CoD’s Vision through Consensus-Based Judicial Reforms
The recent political developments signal a potential shift in the discourse surrounding judicial reforms in Pakistan.
While Chairman Bilawal Bhutto-Zardari has advocated for a Federal Constitutional Court, the idea of a federal constitutional bench within the Supreme Court may represent a consensus-based solution that preserves the spirit of the CoD.
Both models—with equal provincial representation and parliamentary oversight in the appointment process—would contribute to strengthening judicial independence, safeguarding provincial autonomy, and protecting fundamental rights. Ultimately, these reforms would help realize the vision laid out in the Charter of Democracy, advancing Pakistan toward a more just, democratic, and constitutionally secure future.
Copyright Business Recorder, 2024
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