ISLAMABAD:
The jurisdictional dispute between the country’s two apex courts remains unresolved as the Supreme Court appears to be cautious in fixing a hearing in the matter in which it raised legal questions over the Federal Constitutional Court’s (FCC) order seeking records of cases involving PTI founder Imran Khan and directing that they be fixed for hearing before it.
The delay has left questions surrounding the FCC’s jurisdiction and the implementation of the SC’s order for Imran Khan’s transfer to Shifa International Hospital unresolved.
The FCC raised questions on September 14 over the SC’s August 18 order directing the transfer for medical treatment. However, the matter is yet to be fixed for hearing before the FCC. Meanwhile, the SC has also not fixed the matter for hearing despite its September 16 judicial order.
A three-member bench led by Justice Shahid Waheed adjourned the hearing for three weeks on September 16 at the request of Attorney General for Pakistan Mansoor Awan.
There is little chance that the matter will be listed for hearing next week, as the head of the bench, Justice Shahid Waheed, will be sitting at the SC’s Lahore Registry to hear cases.
It is also learnt that, despite the judicial order, the SC office has yet to send the records of Imran Khan’s cases to the FCC for hearing.
A senior law officer believes that although the SC’s order remains in force, if it takes up the case again, the FCC will be compelled to stay the SC’s August 18 order regarding Imran Khan’s transfer to Shifa International Hospital.
He said the SC had no option but to follow the FCC’s order, which was binding on it under Article 189 of the Constitution.
Legal experts believe that if the SC ultimately sends the case to the FCC, it would effectively establish the subordinate status of the SC.
“Will the SC judges accept their demotion or resign?” a senior lawyer questioned.
‘Belated obituary of SC’
Barrister Tariq Mahmood Khokhar said the FCC order was “a belated obituary of the Supreme Court of Pakistan”. He said the SC’s decline had been a “predicted and predictable outcome” of the 26th and 27th Constitutional Amendments.
“The Constitution was amended, not for constitutional reasons but for state reasons,” Khokhar said.
The jurisdictional dispute between the two apex courts has also left uncertainty over Imran Khan’s health unresolved, as neither the FCC nor the SC is taking up the matter.
A senior government official told The Express Tribune that, in view of the latest report, Imran Khan was completely physically fit. He said the report would be submitted to the appropriate court before the case was fixed for hearing.
On August 18, the SC ordered the government to shift Imran Khan to Shifa International Hospital for medical treatment. However, the order was not fully implemented.
Following this, petitioner Uzma Khan filed a contempt petition against Prime Minister Shehbaz Sharif and others over the non-implementation of the August 18 order. The same contempt matter was also fixed for hearing before the bench.
In its order, the court noted that it had been brought to its notice that certain cases arising from a judgment of the Islamabad High Court, delivered in a petition under Article 199 of the Constitution, had reached the FCC. The relief sought in those cases was substantially similar to that granted by the SC through its August 18 order.
The court noted that, before proceeding to adjudicate upon those matters, the FCC appeared to have considered it appropriate to examine the proceedings pending before the SC and had accordingly called for their records.
Referring to paragraph 6 of the FCC order, the bench questioned how the constitutional court could order the ‘fixation’ of cases whose records it was summoning from the SC.
However, the bench acknowledged that the FCC could summon records of cases under Article 175 E (5) of the Constitution.
At one point, Justice Naeem Akhtar Afghan said Article 175 E(5) of the Constitution did not specifically mention that the FCC could summon records of cases from the SC, unlike Article 189, which states that the FCC’s orders are binding on all courts, including the SC.
Justice Shahid Waheed remarked that the bench could not disregard the FCC’s order. However, he also questioned whether the FCC’s order was binding on the SC.
The presiding judge said that the enforcement of fundamental rights was involved in every matter.
He noted that, under the Constitution, appeals against orders of the FCC were heard by the SC, whose decisions were final. He asked whether the SC’s order in a Sharia matter would be binding on the FCC.
