Having TWO Chief Justices will solve the problem?

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The Article 4 of the CoD, signed on May 16, 2006, reads: “A Federal Constitutional Court will be set up to resolve the constitutional issues, giving equal representation to each of the federating units whose members may be judges or persons qualified to be judges of the Supreme Court, constituted for a six-year period. The Supreme and High Courts will hear regular civil and criminal cases. The appointment of judges shall be made in the same manner as for judges of higher judiciary.î

Media reports suggest that the prime minister is considering the option of creating another office of the chief justice in a manner that one chief justice should be dealing with the legal side of the Supreme Court while the other chief justice would be dealing with the constitutional issues in the same apex court.

Like the United States, Britain, Canada, India and many other countries, Pakistan has the kind of judicial system where the constitutional matters are dealt by the ordinary judicial system. None of these countries have two chief justices in their respective supreme courts.

Countries like Albania, Andorra, Austria, Belarus, and the Federation of Bosnia Herzegovina have constitutional courts, dealing exclusively with the constitutional matters, but in these countries, too, the chief justice of the country remains one person.

A constitutional court is generally considered a high court that deals primarily with the constitutional law. Its main authority is to rule on whether or not laws that are challenged are in fact unconstitutional, i.e. whether or not they conflict with the constitutionally-established rights and freedoms. In other cases, such constitutional courts serve as autonomous entities.

Like many other countries, Pakistan does not have separate constitutional courts, but instead delegates constitutional judicial authority to its Supreme Court. Nevertheless, such courts are sometimes also called “constitutional courts”. For example, some have called the Supreme Court of the United States “the world’s oldest constitutional court” because it was the first court in the world to invalidate a law as unconstitutional (Marbury v Madison), even though it is not a separate constitutional court.

Austria established the world’s first separate constitutional court in 1920 (though it was suspended, along with the constitution that created it, from 1934 to 1945). Before that, only the US and Australia had adopted the concept of judicial review through their supreme courts.

While the PPP government may come up with the novel idea of creating two offices of chief justices in the Supreme Court, thus, meaning by that the country would have two chief justices, the Charter of Democracy does not have any provision for two chief justices. It only talks of the setting up of a Federal Constitutional Court for a period of six-years only in order to sort out the constitutional controversies haunting the nation since long.

The CoD does not talk of the details but such a Federal Constitutional Court could either function as a high court or like that of the Federal Shariat Court but without undermining the prestige, functions and authority of the Supreme Court of Pakistan, which remains the apex judicial body of the country.