The crucial talks between the leading coalition partners, Asif Ali Zardari of Pakistan People's Party (PPP) and Mian Nawaz Sharif of the Pakistan Muslim League, on the restoration of the deposed judges have collapsed as both sides stuck to their points of view.
The sticking point is the future of the judges, including the incumbent Chief Justice of Pakistan, Justice Abdul Hameed Dogar, who took oath under the Provisional Constitutional Order issued by President (Retired General) Parwez Musharraf on November 3, 2007.
After dragging feet on the issue for weeks, Pakistan People's Party led by Asif Ali Zardari, has reportedly acquiesced to the demand by President Musharraf to create two parallel Supreme Courts to accommodate the so-called PCO judges and curtail powers of the Chief Justice Iftikhar Chaudhry, when he is restored.
According to the News, 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.
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 controversial National Reconciliation Ordinance (NRO), constitutional controversies, the validity of President Musharraf's election and most importantly the suo motu powers under which Justice Iftikhar Chaudhry prevented the looting of Pakistan Steel Mill and embarrassed the establishment on the issue of missing persons held by the intelligence agencies without trial in secret prisons.
Obviously, in this set up 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 President Musharraf and Zardari. In November last, Chief Justice Dogar dismissed challenges to Musharraf's re-election.
The Supreme Court in February upheld the controversial National Reconciliation Ordinance (NRO) promulgated in October by President Pervez Musharraf to grant amnesty in graft cases to a few PPP leaders, including Zardari and his slain wife Benazir Bhutto. In recent weeks, Zardari has been cleared by several graft cases, including the Surrey Palace case in London on which government of Pakistan spent about one million pounds (Two million dollars) on prosecution.
If the proposed constitutional package is passed by the National Assembly it will bury the question of validity of President Musharraf's controversial re-election while still he was donning uniform. It will also pre-empt the ambitious pursuit of Justice Iftikhar Chaudhry of frequent exercise of powers of the judicial review that will be transferred to the Federal Constitutional Court.
However, there cannot be two opinions that the two parallel Supreme Courts would belittle the institution of the judiciary which has already been damaged by the controversy of the PCO judges and previous judgments upholding the martial laws or army rule under the law of necessity. It was Chief Justice Iftikhar Chaudhry who restored the image of judiciary when he refused to bow to President Musharraf's demand to oblige him with favorable judgments or resign.
The stance for the restoration of the judges is not only popular but also in the greater interests of Pakistan. By restoring all judges who refused to take oath under the Nov 3 PCO, the judiciary would be cleared of those who could be bought or blackmailed. The judges would only be those who had refused to obey the Establishment's instructions and stood for principles over positions or money. However, an independent judiciary – a judiciary that will not bow down to pressure, sticks or carrots – is a major threat to president Musharraf and the establishment
Not surprisingly, the judges controversy has led to fully unmasking the political agenda of Zardari who is implementing the US-backed Benazir-Musharraf deal in letter and spirit. It is commonly believed that the Benazir-Musharraf deal prevented the PPP from including the widely popular demand for restoration of the judges in its manifesto. The IRI polls of November suggested that an overwhelming majority (73 per cent) of Pakistanis opposed the PCO judges and Musharraf's re-election (72 per cent). In addition, 61 per cent of Pakistanis opposed a Musharraf-Bhutto deal in November 2007.