Proposal to set up Constitutional Court presented in Upper House
14 March, 2013
ISLAMABAD: The Pakistan People's Party on Wednesday presented a proposal in the Upper House to set up a Constitutional Court to resolve constitutional issues.
Speaking on the issue of dual nationality of judges, Senator Farhatullah Babar told Senate that the idea of the court had already been agreed upon in 2006 in the Charter of Democracy signed between Nawaz Sharif and Benazir Bhutto but had not yet been implemented. He said that more that 80 percent of the CoD had been implemented and it was high time to enforce the remaining provisions, particularly the establishment of the Constitutional Court.
The PPP senator said that it has been recently observed that the constitution, not parliament, is supreme. At the same time, it is said that the constitution is how it is interpreted by the court, he said and added that this formulation places the Supreme Court in a position where it will be seen as having an interest in the outcome of any constitutional debate. This will erode the constitutional authority of other state institutions and will be detrimental to democracy itself, he said.
Farhatullah Babar also called for amendment to Article 184 of the constitution to provide for appeals in suo motu cases besides legislation under Article 191 to regulate the practice and procedure of the Supreme Court.
The senator said such measures were necessary to maintain balance between the state organs. He said the present government was going to complete its term in next three days and therefore his proposals should not be misunderstood as put forth due to any partisan political considerations. Regardless of which political party come into power, these steps are critical for balance between state institutions and to uphold the principle of separation of powers, he added.
The discussion was prompted by a motion moved by Senator Farhatullah Babar and Aitzaz Ahsan to discuss Supreme Court's reply to the question whether there were any dual nationality judges in the superior judiciary.
The PPP senator urged the apex court to demonstrate same level of transparency and accountability as it had been seeking to impose on other state institutions. He said the prestige of courts must not rest merely on exercising powers under the contempt law.
He recalled the comments of International Commission of Jurists in July last year urging the Supreme Court to exercise restraint in taking suo motu notices "because its overuse could endanger the rule of law". He also recalled comments by International Crisis Group President Justice Louise Arbour that the judges have become intoxicated with their own independence.
Farhatullah Babar said the hallmark of a mature democracy is the proper functioning of checks and balances and regretted there were no checks and balances for the judiciary.
"Judges have disqualified an elected prime minister. They have disqualified dozens of MPs over dual nationality. Neither parliament nor president have any role in appointment of judges. Judicial Commission is unevenly structured, having eight judges and three non judges as against the parliamentary committee which has equal number of four MPs both from treasury and opposition. More than one hundred judges have been appointed during the last five years and all by the judiciary without any role of the parliament or the president. The parliamentary committee has been made totally irrelevant while it is being said that the president's role is only that of a post office. So where is the balance and where is the check?" he maintained.
Farhatullah Babar said in the US and India, judges are impeached by parliament but here judges impeach the MPs. "Parliament cannot even ask a simple question from judges. In India, parliament makes code of conduct for judges but here legislation passed by parliament is undone by judges," he said.
PPP Senator Saeed Ghani said we have rendered great sacrifices for the restoration of judiciary and claimed that he himself went to jail twice. However, not responding to the Senate questions has made the matter suspicious, he said. He said respect of courts can't increase through taking more suo motu notices. "Decisions on merit will increase dignity of the courts," he maintained.