NEED FOR FEDERAL CONSTITUTIONAL COURT
2007
By Senator Sanaullah Baloch Senator Baloch writes about Pakistan’s political conflicts and lack of conflict prevention and resolution mechanism in absence of Federal Constitutional Court
Need For Federal Constitutional Court
What the people of Pakistan need in this critical phase of history, an independent, responsible, reliable, unbiased, capable federal constitutional court, located remotely from power orbit, represented equally by all four provinces and endorsed by provincial assemblies with two-third majority to represent and protect the rights of the individuals, federating units and federal parliamentary system.
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Need For Federal Constitutional Court
Need for Federal Constitutional Court SENATOR SANAULLAH BALOCH
Pakistan’s political and judicial history is a mixture of military escapade, judicial submission and intentional de-gradation and slander of state organs and institutions. Constitution in Pakistan, like other charters in the world, provides basic fundamental guarantees to individuals and institutions; however, it has never been implemented or translated in true spirit. Federal Constitutional Courts in most of the countries have both role of umpire and Federal provincial relations, distribution of custodian to protect the rights of institutions resources including separation of power among and individuals government branches, human rights and equality before the law has always been capitulated by the custodians of the contract. Constitutional mayhem and rightfulness of rule has always been a longstanding subject in Pakistan’s political sphere. Recent judiciary versus executive crisis has exposed the fragile institutional relations in Pakistan, whereas a subservient department with overwhelming monetary and military power is superseding and undermining all national institution. Nevertheless, such encroachment and violation s are discouraged in true democracies through established institutions. Federal Constitutional Courts in most of the countries have both role of umpire and custodian to protect the rights of institutions and individuals to discourage any adventurism from self-proclaimed superior branch of state.
Pakistan has gone through a complex constitutional crisis from time to time, and lack of standing judicial system, to deal with delicate constitutional matters has resulted in to the breakup of the country and repeated setback to the democracy.
Superior courts unnoticed the East Pakistan politico-military conflict that resulted in the breakup of the country. Military operation in 1973, abolition of NAP government in Balochistan and ban on National Awami Party by the central government was quietly ignored by the apex court. In recent past, Supreme Page 2
Need For Federal Constitutional Court
Court dismisses the petition to stop military operation in FATA and take notice of central governmentmilitary offensives against Baloch people. The role of courts in questioning the use of force in federating units not only remained unquestioned, but also the deaths of thousands of innocent citizens, arbitrary arrests, torture, violation of basic rights, ethnic discrimination remained less the realm of Supreme court. If Pakistan had a Constitution on time and Constitutional Court, we would have not been in such fragile political state. Since, Usif Patel (1955) to Zafar Ali Shah (2002) case, Federal Courts dealt the prime national constitutional matters with imperfect approach. The manners in which constitutional questions have been answered by the apex court has changed the course of political history and paved the way for powerful not for the rightful to control the power corridor. Superior judiciary with its limited occupation has never been a sunshade for political system. The judiciary not only failed to stop frequent derailment of democracy and keep a check on extraconstitutional regime change, but also repeatedly endorsed the consolidation of unrepresentative rules. Paula R Newberg in her book published in 1995, has portrayed judiciary and its decision in following words, “Pakistan’s courts and judges are cast as protectors of the constitution in a separation of powers system. But in circumstances such as those just described they have usually found it expedient or necessary to accommodate wrenching alterations of the constitution or grossly un-or anti-constitutional actions by the rulers of the day. They have done so because they thought such deeds or misdeeds essential to the survival of the state or, more likely and more often, to their own survival�. All courts in civilised societies apply Constitution and the law ?without fear, favour or prejudice?. However, empirical accounts show that the Judiciary in Pakistan has failed to play its due role during grave national crisis and conflicts. Lack of fair and just system based on modern democratic principle has also caused mistrust and split in society.
Absence of specific institutions to resolve various legal and constitutional disputes and check on government bodies, resulted in misuse and abuse of authority. Widespread human rights abuses must be seen in broader perspective, where the establishment, civil bureaucracy, law enforcement and security agencies have remained unaffected from legal and judicial accountability. However, a group has always been benefited from mismanagement of political and judicial system of the country which control military and civil services. Unconstitutional rule also resulted in socio-economic disparities in the regions. Rulers avoiding mass
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Need For Federal Constitutional Court
opposition adopted a policy to keep populous province happy through pumping resources and suppressing the smaller provinces through guns and canons.
The political representatives from oppressed regions have reservation and fear to approach superior courts for any political and social remedy, as superior judiciary has always been twisted and provided legitimacy to the rulers for their extra constitutional acts.
Parliament in Pakistan is no more an institution to rectify the political imbalance. Grumbling provinces are less represented in parliament and are not in a position to set right the rules.
In Pakistan, lack of effective and independent judiciary and comprehensive system to deal with complicated constitutional matters has resulted in disorder in the social and political system.
There are a number of issues causing irritation and discomfort among the people of country living in remote and neglected parts of the country. Issues like fair and just distribution of resources, federal provincial relations, imbalanced development, and repeated excesses against minority provinces, defense spending, political disorder, over centralization of authority needs extensive political and legal fixing.
Reliant Judiciary with limited understanding and capacity always was disposing of cases according to the will and wish of the ruling junta. Law of necessity sort of decisions comes when there is no real and effective court available to read between the lines.
Thousands of cases and appeals are pending for years in courts. According to 2005, 37,122 appeals and 55,982 petitions are pending in high courts of four provinces of the country. International experience indicates that socio-economic cost and time factor of justice has been improved in societies due to the improved judicial system and existence of federal constitutional courts. The Federal Constitutional Courts are an essential part for smooth running of a democratic political system. As the guardian of the Basic Law, the Constitutional Court could play a significant role in umpiring the federal system, resolving conflicts among branches of the national government, overseeing the process of parliamentary democracy, monitoring the political parties, and reviewing restrictions on basic rights and liberties.
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Need For Federal Constitutional Court
Article 153 of Pakistan’s constitution somehow guarantees the right of provinces through establishment of Council of Common Interests. However, it is clear from council’s composition to the rules of procedure that not a single province is in position to benefit or get remedy from the council except Punjab which dominate majority of members of parliament. Council never been active and neither proved an arbitrative institution. Constitutional courts are playing effective role and proved as a significant institution around the world to promote democracy and rule of law, protect individual rights and resolving political conflicts in countries those believe in federal system. Around the world 62 countries have Constitutional Courts or equivalent bodies to resolve conflicts among branches of the government, overseeing the process of parliamentary democracy Developing a just and and reviewing restrictions on fundamental rights.
The Constitutional courts are not an integral part of the regular judicial system in most of the countries, but rather installed as a separate judicial institution. Constitutional Court is regarded as the highest courts when it comes to the interpretation, protection and enforcement of the Constitution. However, in countries like USA, Canada, Japan, Israel, Norway, India, Denmark, Estonia, Finland individuals and institutions rely on their independent, transparent and reliable judicial system for constitutional matters and disputes.
acceptable political system is in the interest of the country. Unjust societies cannot sustain for long.
Developing a just and acceptable political system is in the interest of the country. Unjust societies cannot sustain for long.
The German, French, Spanish and Italian Constitutional Courts tile the way for a cooperative federalism in these countries. In Italy Constitutional Court task consist of monitoring changing economic and social realities and to put together the relationship between state and regions less conflicting. Spanish Constitutional Court is the supreme interpreter of the Constitution. Court has powers and jurisdiction to safeguard the fundamental rights of the citizens through appeal for constitutional protection. CC in Korea established in 1988, aimed to fully protect the people?s fundamental rights and effectively check governmental powers. In South Africa Constitution delegated exclusive jurisdiction to the Constitutional Court in deciding
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disputes about the powers and constitutional status of branches of government and decide about the constitutionality of any amendment to the Constitution.
The German Federal Constitutional Court has been located in the city of Karlsruhe, intentionally dislocated from the federal capital and the head office of the German intelligence in Munich, to avoid social and institutional influence of executive.
What the people of Pakistan need in this critical phase of history, a separate, independent, responsible, reliable, unbiased, capable federal constitutional court, located remotely from power orbit, represented equally by all four provinces and endorsed by provincial assemblies with two-third majority to represent and protect the rights of the individuals, federating units and federal parliamentary system.
What the people of Pakistan need in this critical phase of history, a separate, independent, responsible, reliable, unbiased, capable federal constitutional court, located remotely from power orbit, represented equally by all four provinces and endorsed by provincial assemblies with two-third majority to represent and protect the rights of the individuals, federating units and federal parliamentary system.
The writer is a member of the Senate of Pakistan.
Email: balochbnp@gmail.com http://www.sanabaloch.com Twitter: @Senator_Baloch
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