By Rauf Klasra
ISLAMABAD: Two parallel Supreme Courts are being quietly discussed in Pakistan as part of a draft constitutional package to resolve the complex issue of
the deposed judges’ restoration.
The proposal envisages one Supreme Court to be headed by the deposed chief justice Iftikhar Muhammad Chaudhry dealing only with criminal and civil cases
and the other by the incumbent Chief Justice Abdul Hameed Dogar, which would be looking after the constitutional matters. It will also have all the suo
motu powers.
Highly-placed sources close to the presidential camp revealed that the new constitutional court to be headed by Justice Dogar, whom Musharraf and Asif
Zardari do not want to lose, would be named as the Federal Constitutional Court (FCC), which would be exclusively empowered to deal with all the constitutional
issues, such as the interpretation of the Constitution, the National Reconciliation Ordinance (NRO), constitutional controversies, the validity of President
Musharraf and most importantly the suo motu actions.
Sources said the court, to be headed by Iftikhar Chaudhry, would be a sort of an appellate court on the high courts of the four provinces. But the court
headed by Justice Dogar would handle the real issues that worry the presidency and the Zardari House.
Likewise, the new constitutional package also envisages the formation of a parliamentary committee to scrutinise the judges as it was envisaged in the
Charter of Democracy.
This correspondent made several calls to Law Minister Farooq H Naek to get his point of view but he did not pick up his mobile phone. He did not even answer
an SMS sent to him. Several calls were also made to a member of the constitutional committee Raza Rabbani and Aitzaz Ahsan but they too could not be reached.
The new proposal contemplates the creation of a Federal Constitution Court, to be headed by Justice Dogar with seven judges on the bench. A separate Supreme
Court of Pakistan to deal with civil and criminal appeals would be headed by Iftikhar Chaudhry.
This court will consist of the deposed colleagues along with some of the PCO judges. Sources claimed that if approved and enacted by parliament, the existing
structure of the superior judiciary would be altogether changed into two distinct entities.
An important impact of this proposed amendment over the life of common citizen would be withering away of the writ jurisdiction, as provided under Article
199 of the Constitution, and all five writs shall be exclusively entertainable by the federal Constitution alone.
The status of both the courts with perks and privilege of the judges shall be at par and judges from one court to another court shall be transferable through
exercise of executive authority. The proposed arrangements being discussed further envisages that the Federal Constitutional Court would be the only competent
forum to issue writ of the nature of mandamus, certiorari, prohibition, declaration and injunctions and shall be competent to adjudicate upon disputes
arising between the Federation and the federating units and shall be vested with the jurisdiction to interpret ambiguities in constitutional provisions
and shall be competent to issue injunctions, both interim and perpetual and could validate or declare as null and void a constitutional provision or a
subordinate law.
One expert said the proposed draft, if examined on the touchstone of the jurisdictional and judicial powers of the present day Supreme Court enshrined
in the Constitution of Pakistan, shall be tantamount to divide the powers of the apex court into two entities.
The Supreme Court, headed by Iftikhar Mohammad Chaudhry, shall be reduced to the level of a civil court of civil and criminal appeals whereas all matters
of public and the national importance, including those warranting interpretation of status, laws and constitutional provisions shall be vested in the Federal
Constitutional Court and by such way, any disputes relating to the legitimacy of an incumbent of a government office like president, governor, etc, shall
be exclusively litigated before the Federal Constitutional Court.
The expert said the move appears to placate the apprehensions of the establishment and the presidency on the one hand and endeavour to appease the civil
society, media and the lawyers on the other.
Not only that the question of validity of President Musharraf shall remain buried, but also to pre-empt the ambitious pursuit of Justice Iftikhar Chaudhry
of frequent exercise of powers of the judicial review, a need for creation of a Federal Constitutional Court was felt and a resolution likely to be tabled
next week in parliament shall be qualified with the passage of the constitutional package.
The expert said if this draft law was enacted, the institution of the judiciary would be belittled with its powers divided and jurisdiction curtailed.
The immediate and most lethal impact of the constitutional package would be ordinary litigants and general citizens of the society with the withering away
of the writ jurisdiction of the high court and in the absence of the alternate remedy at provincial capitals and where the high court benches are functioning.
A great deal of inconvenience would be involved to present petitions to the Federal Constitutional Court at Islamabad.
The expert claimed that even the deposed judges would prefer to stay away from the chambers of the newly-styled Supreme Court and the lawyers community
was expected to put an en bloc opposition to the move.
The expert feared as the package was likely to affect the life of an ordinary citizen, the response from the public may aggravate the situation and if
the move failed on the floor of the house, either for dissent by the PML-N or for any other reason, the fate of the coalition government in Islamabad would
also be decided there and then.
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