The Federal Constitutional Court building. Photo: File
ISLAMABAD:
The dispute between the country’s two apex courts over jurisdiction has intensified further, with the Supreme Court on Wednesday cautiously questioning the Federal Constitutional Court’s (FCC) order seeking the records of cases involving PTI founder Imran Khan and fixing them for hearing before it.
“The order passed by the Federal Constitutional Court gives rise to questions of considerable constitutional and legal significance, including questions concerning the interpretation and application of the Constitution, the relevant provisions of law and, where necessary, the applicable principles of Islamic law,” read a three-page order.
The order was issued by a three-member bench led by Justice Shahid Waheed and comprising Justice Naeem Akhtar Afghan and Justice Ishtiaq Ibrahim while hearing several cases regarding the medical treatment as well as giving the access to family members for meeting with Imran Khan.
The bench has sought legal assistance from Attorney General for Pakistan Mansoor Awan for course of action to avoid inconsistency and judicial comity between two apex courts after invoking of Article 175 E (5) of the Constitution.
“Without entering into those questions at this stage, we consider it appropriate, in the first instance, to seek the assistance of the learned Attorney General for Pakistan regarding the proper course to be adopted in these proceedings and, in particular, the extent, if any, to which the aforesaid order of the Federal Constitutional Court bears upon the proceedings before us”, says the order.
The court further notes that this course is considered appropriate so as to avoid any situation that may be inconsistent with the proper functioning of the two apex judicial institutions of the country and, at the same time, to preserve the spirit of judicial comity’
The order said that AGP submits that the situation that has arisen is unprecedented and that the recent constitutional amendments, together with the questions flowing from them, require careful and meticulous examination.
He therefore seeks three weeks to consider the matter and prepare his submissions so as to render effective assistance to the court. The court allowed the AG request and adjourned the hearing for three weeks.
The same bench on August 18 ordered the government to shift Imran Khan to the Shifa International Hospital for medical treatment. However, the order was not fully complied with.
Upon this, Petitioner Uzma Khan moved a contempt petition against Prime Minister Shehbaz Sharif and others over the non-implementation of August 18 order. The same contempt matter was also fixed for hearing before the bench.
The court in its order has noted that it was brought to notice that certain cases arising from a judgment of the Islamabad High Court, rendered in a petition under Article 199 of the constitution have reached the FCC, wherein relief has been sought which is substantially similar to that granted by SC through its August 18 order.
The court notes that it appears that, before proceeding to adjudicate upon those matters, the FCC considered it appropriate to examine the proceedings pending before this court and, accordingly, called for their record.
The bench while referring para 6 of FCC order has wondered that how the court could order for the ‘fixation’ of cases which would be summoned from the Supreme Court.
However, the bench has acknowledged that the FCC could summon record cases under Article 175 E (5) of constitution.
At one point, Justice Naeem Akhtar Afghan said that Article 175 E(5) of the Constitution does not specifically mentions that the FCC could summon record of cases from the SC as it was stated in Article 189 which says that the FCC order would be binding on all courts, including Supreme Court.
Justice Shahid Waheed remarked that they could not disregard the FCC order. However, he also questioned whether the FCC order is binding on the Supreme Court.
The presiding judge said that enforcement of fundamental rights is involved in every matter.
He noted that under the Constitution, appeal against the Federal Shariat Court order is being heard by the Supreme Court whose decision would be final.
He asked whether the SC order in Sharia matter would be binding on FCC.
Justice Waheed asked whether the Supreme Court could extend any relief to the prisoners under the guiding principles of the Holy Quran and Sunnah – a jurisdiction which the FCC is lacking.
On the query of August 18 order, the AGP stated that the SC decision is still intact.
PTI lawyers requested the bench to take up matter regarding the implementation of August 18 order. However, the bench was more focusing on settling the jurisdictional issue between two apex courts.
It has been witnessed that despite the judicial order, the bench members while giving observations were very cautious. It is learnt that efforts could be made to settle the jurisdictional dispute between apex courts through back channel. However, there is unlikely that issue could be settled before the PTI long march.
Former attorney general believes that the Supreme Court has last opportunity as it should have framed questions regarding distribution of jurisdiction between the FCC and the Supreme Court and send the matter to chief justice with direction to fix the matter before full court in 3 weeks. “They keep on surrendering their jurisdiction. Why the PTI lawyers did not make this request.”
He asked that what stopped the SC from framing legal jurisdictional questions and refer it to full court? In rent matter, CJP himself decided jurisdictional issue.
“On the touchstone of the principle laid down by the Chief Justice himself, the cases concerning the three prisoners, transferred from the Islamabad High Court to the Federal Constitutional Court, should have been referred to the Supreme Court rather than the other way around, according to the argument being advanced before the court.
“This is a core jurisdictional issue for future jurisprudence. The SC has jurisdiction in this matter and they should assert it.”
The former law officer states that the Supreme Court should seek professional assistance from independent lawyers as amicus.
“This is not an issue requiring out-of-court settlement through mediation of CJP. Full Court should hear it and decide dispassionately in the light of the Constitution as it stands after the 27th Amendment. No need to unnecessarily challenging the FCC but don’t concede your domain without minimal resistance,” says ex AGP.
However, another senior lawyer states that Section 115 of the Code of Civil Procedure, 1908, empowers high courts to exercise revisional jurisdiction over courts subordinate to them.
“The provision authorises the High Court to “call for the record” of any case decided by a subordinate court in which no appeal lies. The expression “call for the record” cannot be regarded as a meaningless procedural formality. Once the superior court calls for the record of a case, the entire record and, consequently, the matter itself comes within its revisional jurisdiction. Otherwise, there would be little, if any, purpose in conferring a power to call for the record.
The lawyer states that the 27th Constitutional Amendment adopts substantially similar language in conferring jurisdiction upon the Federal Constitutional Court (FCC) to call for records. The significance of this language must be assessed in the constitutional context in which it was introduced. Unlike the ordinary revisional jurisdiction under Section 115 CPC, the jurisdiction conferred upon the FCC by Article 175E is constitutional in character and is not necessarily confined to cases that have already been finally decided.
“Article 175E must therefore be construed according to the scope and purpose of the constitutional jurisdiction expressly vested in the FCC. If the Constitution authorises the FCC to call for the record of proceedings before another court, that power cannot be reduced to a merely administrative or procedural function. The power to call for the record necessarily enables the FCC to examine the proceedings contained in that record and to exercise the jurisdiction constitutionally conferred upon it in relation to those proceedings.
“The constitutional scheme becomes even more significant when Article 175E is read together with the provision making the decisions and jurisprudence of the FCC binding upon all courts. The expression “all courts” necessarily encompasses the Supreme Court unless the Constitution expressly excludes it. No such exclusion can be presumed. If the constitutional text makes the jurisprudence of the FCC binding upon all courts, the Supreme Court cannot, merely by virtue of its status as the highest court under the previous constitutional arrangement, place an independent or contrary interpretation upon a binding determination of the FCC,” he adds.
He said that the 27th Amendment must be understood as having deliberately altered the constitutional judicial structure. The relationship between the FCC and the Supreme Court cannot therefore be determined solely by reference to the position that the Supreme Court occupied before the Amendment. The constitutional text, as amended, must govern. If the Amendment has expressly vested the FCC with jurisdiction to call for records and has simultaneously made its jurisprudence binding upon all courts, the resulting constitutional hierarchy cannot be displaced by an interpretation based upon the pre-Amendment institutional position of the Supreme Court.
The central question, therefore, is not whether the Supreme Court previously exercised the highest judicial authority, but whether, after the 27th Amendment, the Constitution has assigned a particular constitutional jurisdiction to the Federal Constitutional Court and prescribed the legal effect of its determinations. Where the constitutional text expressly confers upon the FCC the power to call for the record and makes its decisions and jurisprudence binding upon all courts, those provisions must be given their full legal effect. The scope of the FCC’s jurisdiction must consequently be determined from the amended constitutional text itself, rather than from assumptions derived from the pre-Amendment judicial hierarchy”, he adds.
Abdul Moiz Jaferii advocate states that the docility with which the Supreme Court has handled today’s proceedings is an indicator of where we will go from here.
He further said that a contempt unanswered with contemnors absent. An attorney general clearly wanting to have nothing to do with answering the court which continues to call itself a co apex institution.
“The need to refer to Islamic principles to try and maintain a fig leaf of authority is telling. In the name of God, the judges ask, give us some respect,” says Jaferii.
He said that underpinning this mess is exactly what we have all been saying since the politicians first revealed the constitutional court as a way of capturing the judiciary thinly disguised as a scheme for efficiency.
“There cannot be a separate stream of constitutional courts in common law countries. All superior courts necessarily dispense constitutional justice. Turn that on its head and you get what happened today: no one but the FCC can decide anything to do with the Constitution. What does everyone else do? Where does efficiency go,” says Jaferii advocate.
