• Constitutional court would hear appeals to high court orders, as per draft proposal
• Senior lawyers approach apex court to stop govt in its tracks
• Ex-SCBA president terms amendments an ‘encroachment’ on judiciary’s independence

The idea of a new constitutional court has rekindled the haunted memories of lawyers from the days of dictatorship, who see it as another attempt to clip the Supreme Court’s powers.

The Federal Constitutional Court (FCC) was part of a broader set of legislation, which the government wan­ted to introduce under the controversial ‘Constitutional Package’.

A draft of the proposed amendments circulating in the media on Monday gave an idea about the government’s plan to modify the powers of the apex court.

The government, which pulled back from pushing the Constitutional Package through parliament on Monday, has neither owned nor denied the rumoured draft.

It is also possible that some of the provisions, currently thought to be a part of the amendments, might be modified before a final draft is presented in the parliament.

However, as per the reported draft, the government intends to add 184(A) to the Constitution to empower the FCC to interpret the Constitution and hear appeals against any law passed by the parliament.

Likewise, under the proposed Article 184(A)(2), appeals against the decisions of high courts will also be heard by the FCC.

Another proposed change is to transfer all pending appeals against the orders of high courts to the FCC after the constitutional amendment is passed.

The government also intends to amend the Constitution to give the FCC “exclusive and original jurisdiction” other than the Supreme Court to decide any dispute between federal and provincial governments.

A proposed change to Article 184(2) would empower the FCC to pronounce declaratory — binding — orders, while a change in 184(3) would allow the proposed court to determine questions of public importance concerning the rights of people.

As per the amendments, modifications are proposed in Article 175(A) to add the chief justice and two senior FCC judges to the Judicial Commission — which appoints judges to superior courts.

The reshaped commission would also include the Supreme Court chief justice and two senior-most judges, the law minister, the attorney general, a senior advocate, two members of the Senate and National Assembly each from the treasury and the opposition.

The proposed amendments would also empower the president to appoint the most senior FCC judge as its chief justice for three years.

Any serving or retired judge of the Supreme Court or high court could be appointed as an FCC judge.

Clipping SC’s powers

Experts fear that the proposed amendments would virtually erode the independence of the judiciary by restricting the Supreme Court to only hearing appeals or petitions of civil and criminal nature.

Perturbed by the government’s plans, a group of lawyers, led by former Supreme Court Bar Association (SCBA) Abid Shahid Zuberi, moved a petition before the Supreme Court to restrain the government from tabling the bill before parliament.

One of the founding leaders of SCBA, Muhammad Akram Sheikh, described the proposed amendments as a “blatant attack on the judiciary’s independence”.

According to Mr Sheikh, constitutional courts do not exist in the common law world (Commonwealth nations).

The coalition government is “taking away” the Supreme Court’s powers to decide disagreements between federal and provincial or between citizens and governments.

Such amendments to the Constitution “serve as a prelude to its abrogation or holding it in abeyance”, Mr Sheikh said, adding that the now deleted Article 58(2)(b) encou­raged former dictator Pervez Musharraf to abrogate the Constitution.

“When you show such disrespect to the basic foundational document like the Constitution, it encourages those who have the power to kick it off their way and hold it in abeyance like it has been done so many times in the short life of 77 years.”

According to Mr Sheikh, the entire plan is borne out of a “mala fide”, especially following the July 12 order of SC, which declared that PTI was entitled to reserved seats in parliament.

Unfortunately, the “division in the Supre­­me Court” has also encouraged those who are behind these proposed amendments, he regretted.

‘Neo-PCO judiciary’

Former additional attorney general (AAG) Tariq Mehmood Khokhar said the proposed amendments have come at the “worst time” as constitutional, democratic, economic and judicial norms are currently in “ruins”.

“It will be a creature of an unrepresentative legislature,” he said of the proposed legislation.

He observed that the legislative purpose — as opposed to intent — of these constitutional changes was to install a “neo-PCO judiciary”.

Such a move would divide the judiciary, curtail its independence, set up parallel courts and supplant independent judges.

Barrister Taimur Malik, an international law expert, said that even in countries where constitutional courts only hear civil cases, there are issues regarding the delimitation of functions between them and the Supreme Courts.

The proposed FCC, he said, was “ill-advised, ill-intentioned” and not well throughout.

There is already the Supreme Court which can look into issues of interpretation of constitutional matters, Mr Malik added.

Meanwhile, a senior counsel told Dawn, on condition of anonymity, that the controversial amendments could also derail the International Monetary Fund (IMF) loan programme.

The lender is expected to approve the much-anticipated $7 billion bailout plan for Pakistan in its Executive Board meeting on September 25.

The senior counsel said these amendments will “send a negative signal” to the IMF board.

Hence, they have been postponed for the time being. The fund is extremely sensitive to legislative and constitutional changes that could affect a country’s economic and governance structure, he stated.

Published in Dawn, September 17th, 2024