Two Supreme Courts being considered to Resolve Judges issue

An article written by Rauf Klasra published in The News today, is an eye opener, for the democratically elected forces actually contemplating to split the Supreme Court into two functioning bodies is almost akin to the mockery made by Pervaiz Musharraf when he created an Islamabad High Court in an attempt to protect his illegal actions. I doubt this proposal was afoot in the Dubai talks and may have truly surfaced when Zardari came rushing back to seek the blessings of the Presidency. Musharraf in his conspiring way could have easily coughed up this proposal (possibly in conjunction of the Jadogar of Jeddah). The division of the Supreme Court will be the biggest crime ever conceived.

Nawaz Sharif might indeed be toeing along simply to make the best out of the situation, but I feel if such a proposal is afoot one must act swiftly & quickly to nip the idea in the bud well before it takes a serious turn. Its about time PML-N quit the honeymoon coalition government and join the lawyers on the street in the ongoing struggle for the restoration of Judiciary in Pakistan. At the same time an evil genius (!!) within me might suggest Nawaz Sharif to hold on for just a bit longer, ensure that PPP is publicly committed on this concept and then pull the plug. Quite instantly the PPP bubble will fizzle like a balloon let free, even the PPP stalwarts might find it difficult to hold on even for their dear lives. All said, I truly hope that the suggestion of the bifurcation of the Supreme is unfounded, for the sake of Pakistan, I definitely hope its just another rumor floating around

Two Supreme Courts being considered to resolve judges issue
The News: Saturday, May 10, 2008

By Rauf Klasra – website

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.