Islamabad, Pakistan: There is a debate in Pakistan after the Federal Government decided to move the Constitutional amendment to introduce a Constitutional Court in the country.
Though the draft amendment is yet to be shared with the public, it has been noted that it would form/establish a Constitutional Court with the parameter of the Supreme Court having judges of the Supreme Court who would listen only to Constitutional amendments and possibly Constitutional petitions as well. It may be noted that the Charter of Democracy signed on 14 May 2006 by major political parties had this point that the Federal Government would establish a Constitutional Court sooner. However, almost 18 years have passed but this point of Charter still awaits implementation.
Over 65 countries, including P-5 countries such as the United States, United Kingdom, China, and Russia, have Constitutional Courts, and many other countries have for the last over two hundred years. The 1776 Constitution of Pennsylvania and the 1777 Constitution of Vermont both established a “Council of Censors” separate from the other branches of government, with the task of “recommending to the legislature the repealing of such laws as appear to them to have been enacted contrary to the principles of the constitution. This development is considered a seed for a modern constitutional court.
In 1919 the First Austrian Republic established the first dedicated constitutional court, the Constitutional Court of Austria. The 1920 Constitution of Czechoslovakia was established on 2 February 1920 and was the first to provide for a dedicated court for judicial review of parliamentary laws, but the court did not convene until November 1921. The development encouraged other European countries to establish Constitutional courts and was subsequently adopted by many other countries e.g. Liechtenstein (1925), Greece (1927), Spain (1931), Germany (1949), etc. Now, Albania, Angola, Armenia, Australia, Austria, Azerbaijan, Belarus, Belgium, Benin, Bosnia and Herzegovina, Bulgaria, Myanmar, Canada, Chad, Chile, Colombia, the Democratic Republic of the Congo, Croatia, Czech Republic, Dominican Republic Ecuador, Egypt, Gabon, Georgia, Germany, Guatemala, Hungary, Indonesia, Iran, Italy, Jordan, Kazakhstan, Republic of Korea (South Korea), Kosovo, Kuwait, Kyrgyzstan, Latvia, Lebanon, Lithuania, Luxembourg, Republic of North Macedonia, Malta, Moldova, Mongolia, Montenegro, Niger, Peru, Poland, Portugal, Romania, Russia, Serbia, Singapore, Slovakia, Slovenia, South Africa, Spain, Suriname, Syria, Taiwan, Tajikistan, Thailand, Turkey, Uganda, Ukraine, Uzbekistan, Zambia, and Zimbabwe have Constitutional Courts. Unlike India and Pakistan, constitutional courts working in the countries mentioned above purely deal with constitutional petitions and do not hear other cases. In Pakistan and India, Supreme Courts deal with Constitutional cases including cases against Constitutional amendments.
It has been witnessed that the Supreme Court of Pakistan in the last one and half years spent most of its time on Constitutional petitions although more than 60,000 cases are pending in the Supreme Court (SC) of Pakistan. Most of these cases are of ordinary litigants which have been pending, in some cases, for years. Recently, in a criminal review, which the SC decided after 9 years, the SC itself said that the person was kept in a death cell for 25 years awaiting the fate of his appeal and then review in the SC.
It has been seen that most of the time of the SC is consumed by cases that have no direct bearing on ordinary litigants, who have to wait for years and decades to have their cases decided while the proposed Constitutional Court will only deal with the constitutional matters whereas the SC will continue to dispense justice to the 250 Million people of the country and Supreme Court will have to decide all pending appeals of ordinary litigants in two years and all new appeals will have to be decided in one year.
