ISLAMABAD: The Supreme Court on Wednesday expressed reservations over the Federal Constitutional Court’s (FCC) directive that cases pertaining to PTI founder Imran Khan’s hospital transfer be fixed before the latter, but deferred its own proceedings on the matter for three weeks, observing that propriety demanded deferment.
The FCC had issued the orders on Tuesday, directing the court’s office to requisition from the SC the relevant cases and fix them before it under Article 175-E of the Constitution. The directive was issued on a plea by three Adiala jail inmates seeking relief similar to that provided to Imran by the SC in an August 18 order.
A three-judge SC bench, headed by Justice Shahid Waheed and including Justices Naeem Akhtar Afghan and Ishtiaq Ibrahim, took up the pleas on Wednesday.
The judges told Attorney General for Pakistan (AGP) Mansoor Usman Awan that what bothered them was the fixation of the cases before the FCC, as stated in paragraph six of the Sept 15 FCC order.
Justice Waheed also observed that fixing cases before the FCC requisitioned from the SC did not fall under clause 5 of Article 175-E of the Constitution.
Article 175-E, which was inserted in the Constitution through the 27th Constitutional Amendment, empowers the FCC to call for the record of any case and authorises it to decide matters involving major questions of constitutional law.
For his part, the AGP said that the issue required deep analysis and deliberation, following which the bench conceded that the situation was unprecedented as it was the first time the FCC had requisitioned case records from the SC, unlike the usual practice of summoning records from the high courts.
The SC also stated that its Aug 18 directive for the relevant authorities to shift Imran to Shifa International Hospital, a private facility in Islamabad, was made without prejudice to the intentions of the parties.
On a query, the AGP conceded that the SC’s Aug 18 order was in the field but made no assurance when the petitioner’s counsel insisted on its interpretation.
Justice Waheed told the petitioners that the court was leaving the implementation of the Aug 18 directions to AGP, who was not present in the courtroom when the hearing began.
Any other law officer was also not present in courtroom no.5, which was otherwise packed to the capacity.
Subsequently, the court asked for AGP Awan. But it was Additional Attorney General Rana Asadullah Khan who first appeared before the court and read out the FCC’s Sept 15 directives for requisitioning the case record from the SC to the FCC.
The court then retired momentarily, directing that AGP Awan should appear before it.
After almost 35 minutes, when AGP reached the courtroom, the bench wondered whether the Sept 15 FCC order was binding upon the SC.
AGP explained that the FCC had issued the directions by invoking Article 175 E (5) of the Constitution, adding that the tentative jurisdictions in which the two judicial institutions operate have been clearly spelt out under the 27th Constitutional Amendment.
Justice Waheed also read out the questions framed by the FCC in its Wednesday order.
- Which courts have the jurisdiction and competence to enforce the fundamental rights under the Constitution?
- What are the rights which must be afforded to the prisoners under the Constitution and the Pakistan Prison Rules, 1978?
- What is the scope and extent of obligations of the State with regards to the fundamental rights of the prisoners?
- What consequences entail if any functionary of the state violates the fundamental rights of the prisoners?
If fundamental rights are the pivotal point, then fundamental rights are always involved in all cases, be it civil, criminal or even service matters, Justice Waheed observed, adding that the requirement for a fair trial under Article 10-A of the Constitution applied to every case.
Justice Waheed also made it clear that the SC can extend any relief to the prisoners under the guiding principles of the Holy Quran and Sunnah – a jurisdiction which the FCC lacks.
AGP Awan, however, contended that the SC’s Shariat Appellate Bench had the jurisdiction to interpret questions under the Holy Quran and Sunnah.
SC was also disturbed at the absence of officials, including the superintendent of Adiala jail, against whom notices under the contempt proceedings had been issued for violating earlier directions regarding Imran’s meetings with family.
During Wednesday’s hearing, Justice Afghan observed that the only concern was the further scope of action for the SC in view of paragraph six of the FCC order.
“Both institutions have to co-exist, and both have jurisdiction of their own,” Justice Afghan observed, saying the case record could be requisitioned, but went on to express reservations at the fixation of the case before the FCC.
Senior counsel Barrister Syed Ali Zafar, who was also present at the hearing, contended that the case transfer “had nothing to do with jurisdiction” and that there was no question of taking away or conferring jurisdiction under Article 175 E(5) of the Constitution.
Meanwhile, Advocate Uzair Karamat Bhandari, representing Dr Uzma Khan, in her plea against the alleged violation of the SC’s Aug 18 directive, requested the court to at least issue directions to ensure meetings with the family members and lawyers with the incarcerated leader.
It adjourned the further proceedings, noting that propriety demanded deferment of the present matter since the SC, in the spirit of the Constitution, cannot disregard a judicial order.
