ISLAMABAD:
The Supreme Court of Pakistan on May 12 ordered the Islamabad High Court to decide applications filed by 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 judgment, has held that any order or direction to a high court that superimposes a policy or case fixation amounts to intrusion into the judicial and administrative independence of such courts—exposing a chasm between the two courts.
“All decisions of the high court are challengeable before the Supreme Court and/or the Federal Constitutional Court, which does not make the referred court subordinate in any manner.
“Orders issuing directions to the high courts should be made sparingly and must be couched in appropriate words, as they have their independent roster and case management schemes, along with policies for case fixation.
“Any order or direction that superimposes such policy or case fixation amounts to intrusion into the judicial and administrative independence of such courts,” said a three-page judgment authored by Justice Aamer Farooq.
Justice Farooq was leading a division bench that rejected the request by the counsel for a respondent seeking issuance of directions to the high court for an expeditious decision in the matter.
The court observed that requests of this nature are made with considerable frequency, and superior courts often pass such orders directing early decisions.
“The scheme of judicature as provided in the Constitution of the Islamic Republic of Pakistan, 1973, at present, is that there are five independent High Courts in the country created under Part VII, Chapter 3.
“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 as per Article 203 of the Constitution, 1973,” the order stated.
The court, however, noted that at times exigency or the urgency of a controversy may require that, upon remand, a matter be heard by the respective high court at an early date. It emphasized that such observations must be carefully worded and should not affect the independence of the high court.
“Even otherwise, generally directions issued are administrative in nature rather than judicial. Where even a high court issues directions to trial or subordinate courts, the same are administrative in nature and do not entail binding consequences, but are recommendatory, asking courts to take up the matter on a priority basis in view of the urgency of the case,” the judgment added.
At the conclusion, the FCC noted that the writ petition filed by the respondent would be deemed pending before the Islamabad High Court and expressed the expectation that the case would be taken up at the earliest, keeping in view the urgency involved.
Earlier, the FCC had already ruled that supremacy in constitutional adjudication now vests in it, and that all courts, including the Supreme Court, are bound by its pronouncements.
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 views on the government’s wedlock policy. The Supreme Court has held that the policy creates a legitimate expectation for married civil servants that they will be accommodated, rather than being subjected to arbitrary deviation without justification.
In contrast, the FCC has ruled that the wedlock policy cannot be used as grounds for indefinite posting and does not create any vested right.
Similarly, while the Supreme Court on May 12 directed the IHC to decide the Imaan Mazari case within a specified timeframe, the FCC’s recent judgment indicates disagreement with such an approach, particularly where deadlines are imposed on high courts for deciding matters.
