Police officers walk past Pakistan’s Supreme Court building, in Islamabad, Pakistan, April 6, 2022. REUTERS
ISLAMABAD:
In a ruling with far-reaching constitutional implications, the Supreme Court has decided to plug a key loophole created by the 27th Constitutional Amendment, holding that appeals arising from family and rental matters decided by higher courts remain within its appellate jurisdiction.
The verdict resolves an ambiguity that had raised objections at the record level and sparked debate within the legal community over whether such cases could now not reach the high court.
The clarification came in a five-page judgment written by Chief Justice of Pakistan Yahya Afridi while deciding the maintainability of a petition that had earlier been challenged by the Registrar of the Supreme Court.
The objection was raised on the ground that the impugned judgment had been passed by a High Court under Article 199 of the Constitution in a matter of rent and therefore could not be maintained before the Supreme Court under the new constitutional dispensation introduced by the 27th Amendment.
The court clarified that the constitutional prohibition on the appellate jurisdiction of the Supreme Court applies only to cases that actually fall within the scope of Article 175F(1).
Reading section 185(3) together with its proviso, which states that there will be no appeal in cases to which section 175F(1) applies, the judgment held that the restriction is strictly limited and cannot extend beyond its express scope.
Since rent and family matters are explicitly excluded from section 175F(1)(c), these cases cannot be considered to fall within the scope of section 175F at all. As a result, petitions arising from family and rental disputes remain within the appellate jurisdiction of the Supreme Court under section 185(3), subject to the grant of leave.
Article 185(3) of the Constitution operates as a general source of appellate jurisdiction of the SC in respect of judgments, decrees, orders or sentences of a superior court, subject to the exclusion contained in its provision, i.e. cases to which sub-section (1) of Article 175F applies.
Article 175F establishes the appellate jurisdiction of the Federal Constitutional Court and, by virtue of clause (1)(c), expressly excludes from its jurisdiction cases relating to rent and family matters.
The judgment explained that, firstly, “Article 185(3) of the Constitution operates as a general source of appellate jurisdiction of the Court in respect of judgments, decrees, orders or sentences of a High Court, subject to the exclusion contained in its provision, i.e. cases to which subsection (1) of Article 175F applies. Article 175F(1), supra, in turn, establishes the appellate jurisdiction of the Federal Constitutional Court, and by virtue of the proviso to clause (1)(c), expressly excludes, inter alia, matters relating to rent and family matters from its jurisdiction.”
He observed that the question which consequently arises and which is at the heart of the present objection is whether the judgments or orders of a High Court relating to tenancy and family matters, which, by reason of the express exclusion in its provision, do not fall within the ambit of Article 175F(1) of the Constitution and, therefore, are to be considered as cases “to which sub-section (1) of Article 175F applies” for the purposes of the provision of the Article 185(3).
“In other words, the question is whether the express exclusion of rent and family matters from the appellate jurisdiction of the Federal Constitutional Court completely removes such matters from the appellate framework beyond the High Court, including the Supreme Court, or whether, by that same exclusion, they fall outside the application of Article 175(1), thereby attracting the appellate jurisdiction of this Court under Article 185(3), subject to the grant of leave,” the judgment observes.
‘Judicial exaggeration’
However, the order has divided legal opinion.
Former Additional Solicitor General Waqar Rana termed the ruling a judicial overreach, arguing that it amounted to an interpretation used to overcome drafting errors, which could also be seen as an intentional and deliberate failure on the part of Parliament to give finality to such matters at the apex court level.
“These matters, family and rent, used to come to SC only through petitions. What will happen if someone challenges the vires of family law or rent law? In that case, obviously, SC cannot take jurisdiction and FCC has no jurisdiction in such matters as per constitution. Further, in all matters arising out of/decisions taken under Article 199, jurisdiction lies with FCC,” he added.
Rana further stated that jurisdiction should be expressly granted to any court and not impliedly assumed.
On the other hand, advocate Waqas Ahmad said the Chief Justice had addressed an important constitutional issue and had effectively supported Justice R. Mansoor Ali Shah’s reasoning in the Dewan Motors case.
“In my opinion, this is the correct legal approach: a question of jurisdiction must be decided by the same court before which the objection is raised,” he added.
However, Advocate Hafiz Ahsaan Ahmad Khokhar fully supported the order and stated that the SC had carried out a correct, intentional and harmonious interpretation of Articles 175(1)(f), 175(f)(c) and 185(3) of the Constitution, thus reaffirming that the constitutional jurisdiction of the SC cannot be limited by inference or implication.
According to him, the ruling faithfully preserves the constitutional scheme that governs the judicial hierarchy and safeguards the appellate and constitutional jurisdiction of the TS.
He further stated that the ruling reflects clear recognition and principled demarcation of jurisdiction between two of the highest courts of Pakistan, namely the SC and the FCC, which he said was a healthy and positive development in constitutional adjudication.
While family and rental matters have been expressly excluded from the FCC’s jurisdiction, he noted that there is no such exclusion with respect to the SC. Accordingly, the high court continues to have full appellate jurisdiction to hear such matters under Article 185(3) of the Constitution.
