Aamer Farooq, Chief Justice of the Islamabad High Court (IHC). PHOTO: ARCHIVE
ISLAMABAD:
The newly formed Federal Constitutional Court (FCC) has declared that the oath of judges is not a mere formality: it clearly obliges judges to “preserve, protect and defend the Constitution.”
“This indicates that the oath is not intended to protect the statutes (although this certainly does not mean that laws enacted by Parliament should not be followed or respected), but specifically to safeguard the Constitution itself,” said the first written ruling from the newly created FCC.
The verdict, written by Justice Aamer Farooq, was delivered by a division bench after hearing a case related to Section 109-A of the Income Tax Ordinance, 2001.
He said that if a high court judge is faced with a situation where a law conflicts with the Constitution, then the question arises: how can he truly “preserve, protect and defend” the Constitution if he cannot strike down the challenged law?
“The reality is, he can’t. The moment a judge bows to a law that is inconsistent with the Constitution, he turns his oath into nothing more than words recited before taking office.
“Therefore, it is inherent in the jurisdiction and duty of a high court to strike down laws that are ultra vires the 1973 Constitution,” he said.
By the order, the FCC set aside an interim order passed by a constitutional bench of the Sindh High Court (SHC) and remanded the matter to the concerned constitutional court, directing that the interim application be decided again in accordance with law.
The court observed that an interim order can only be passed by a forum that is competent to pass the final judgment. He argued that the Constitutional Court of the SHC did not have full jurisdiction to hear a case of this nature, and that an interim order issued without jurisdiction has no legal force.
The judgment further noted that the petitioner had declared foreign assets under the Amnesty Scheme 2018, following which a notification was issued under section 109-A of the Income Tax Ordinance. An appeal was then filed against the order of the Constitutional Court of the SHC.
The court emphasized that the determination of jurisdiction is the central issue in any legal dispute and must be resolved at the beginning of the judicial procedure. He addressed the question of whether a higher court exceeds its authority by declaring a law invalid, answering the question in the negative.
The judgment affirmed that the high courts possess the power of judicial review as an inherent and essential feature of the constitutional framework. Under Article 199(1)©, read in conjunction with Article 8 of the Constitution, the High Courts are empowered to review legislation in the context of fundamental rights.
However, according to the 27th Constitutional Amendment, only the constitutional chambers of the higher courts are authorized to review the validity of legal provisions. The ordinary courts of a higher court, he stated, lack that jurisdiction. Therefore, the case could only be heard by the Constitutional Chamber of the SHC.
The FCC also disagreed with the view that an interim order cannot be challenged before it. He clarified that the application of a law cannot be prevented unless its provisions are declared unconstitutional and repealed.
