ISLAMABAD:
On May 12, Pakistan’s Supreme Court ordered the Islamabad High Court to decide applications filed by human rights activist Imaan Mazari and her husband Hadi Ali Chatta seeking suspension of their sentences, preferably within two weeks.
However, the Federal Constitutional Court (FCC), in its latest ruling, has held that any order or direction to a higher court overlaying a policy or fixation of a case amounts to an intrusion into the judicial and administrative independence of such courts, exposing a gulf between the two courts.
“All decisions of the Superior Court are challengeable before the Supreme Court and/or the Federal Constitutional Court, which does not subordinate the aforementioned court in any way.
“Orders giving directions to high courts should be issued sparingly and should be framed in appropriate words as they have separate lists and case management schemes along with policies for fixation of cases.
“Any order or directive superimposing such policy or fixation of cases amounts to an intrusion into the judicial and administrative independence of the said courts,” stated a three-page judgment written by Justice Aamer Farooq.
Justice Farooq was heading a division bench which rejected counsel’s plea seeking a request from a respondent to issue directions to the high court for an expeditious decision in the matter.
The court observed that applications of this nature are filed with considerable frequency, and high courts often pass such orders directing early decisions.
“The judicial system currently provided for in the Constitution of the Islamic Republic of Pakistan, 1973 is that there are five independent High Courts in the country created under Chapter 3 of Part VII.
“Each high court is an independent constitutional court and is not subordinate to either the SC or the FCC. However, within the scheme of arrangement, the district judiciary and other courts are subordinate to the respective high court under Article 203 of the 1973 Constitution,” the order said.
However, the court noted that sometimes the exigency or urgency of a dispute may require that, in case of remand, the matter be heard by the respective high court at an early date. He stressed that such observations should be carefully drafted and should not affect the independence of the apex court.
“Even otherwise, generally the directions issued are administrative rather than judicial in nature. When even a higher court issues directions to lower or lower courts, the same are administrative in nature and do not entail binding consequences, but are of a recommendatory nature, requesting the courts to take up the matter on a priority basis in view of the urgency of the case,” the judgment added.
In concluding, the FCC noted that the writ petition filed by the respondent would be considered pending before the Islamabad High Court and expressed the expectation that the case would be taken up at the earliest, keeping in mind the urgency involved.
Previously, the FCC had already ruled that it now has supremacy in constitutional adjudication and that all courts, including the Supreme Court, are bound by its rulings.
Legal experts believe that a clear divergence has emerged in the jurisprudence developed by the FCC and the Supreme Court following the 27th Constitutional Amendment.
The two courts have already expressed conflicting opinions on the government’s marriage policy. The Supreme Court has held that the policy creates a legitimate expectation for married officials that they will be accommodated, rather than being subject to arbitrary deviations without justification.
In contrast, the FCC has ruled that the marriage policy cannot be used as a reason for indefinite displacement and does not create any vested rights.
Similarly, while the Supreme Court on May 12 ordered the IHC to decide the Imaan Mazari case within a specified deadline, the recent FCC ruling indicates disagreement with such an approach, particularly when deadlines are imposed on higher courts to decide matters.
