Court also seeks records of all similar cases from high courts across the country
The Federal Constitutional Court building. Photo: File
ISLAMABAD:
The Federal Constitutional Court (FCC) on Tuesday sought the record of the case regarding the transfer of Pakistan Tehreek-e-Insaf founder Imran Khan to Shifa Hospital from the Supreme Court (SC), while also requesting records of all similar cases from high courts across the country.
The development emerged as the three-member bench, headed by FCC Chief Justice Aminuddin Khan, heard an appeal against an IHC ruling on the transfer of three prisoners to a private hospital.
In the wake of the SC August 18 order that Imran be taken to Islamabad’s Shifa International Hospital, three inmates at Adiala Jail approached the Islamabad High Court, seeking treatment at private hospitals. The IHC on August 31 dismissed the petitions, ruling that the prisoners could not claim treatment at a private hospital as a fundamental right without a medical board determining that the required treatment was unavailable either at the jail hospital or at a government hospital.
According to the court order, the bench sought the record of the case from the SC, along with records of all related cases, under Article 175E(5) of the Constitution. It also directed that records of any similar cases pending before High Courts be submitted to the FCC.
Article 175E(5) empowers the FCC to call for the record of any case pending before any court if it considers that the matter involves a substantial question of law concerning the interpretation of the Constitution.
The FCC could therefore seek to determine whether the SC’s interim order falls within its constitutional domain.
It further added that the court was deliberating on which forum now had jurisdiction to hear questions involving constitutional interpretation and fundamental rights, including the right of prisoners to receive medical treatment.
The court’s order said the matter had reached the FCC following an August 18 order of the SC and raised a question of constitutional interpretation.
Attorney General Mansoor Usman Awan told the court that the FCC had the authority to call for the records and should first determine the question of jurisdiction. “Constitutional interpretation now falls within the jurisdiction of the FCC,” the attorney general said.
Justice Ali Baqar Najafi asked whether the issue had been raised before the SC, to which the attorney general replied that the SC had passed an order without issuing notices to them.
Read: FCC raises questions over SC August 18 order
Justice Amir Farooq noted that the case pending before the SC was criminal in nature, while the matter before the FCC had come against an IHC ruling. “The SC’s order is still interim,” Justice Farooq said.
Justice Najafi said the central question was which court could now hear a case involving constitutional interpretation and fundamental rights.
The attorney general said the FCC could examine fundamental rights and prison rules alongside the question of jurisdiction.
Justice Farooq asked whether the rules governing prisoners covered all such matters, while Justice Najafi noted that the prisoners’ position was that they should receive treatment at a private hospital.
“Medical treatment of a prisoner comes under fundamental rights,” Justice Najafi said. “The right to life is also a fundamental right,” Justice Farooq added.
The attorney general said the state was responsible for ensuring that no harm came to a prisoner in its custody.
The applicant’s lawyer said Sindh had enacted legislation under which prisoners could receive treatment at private hospitals when they fell ill. The FCC also sought responses from the advocate generals of Islamabad and Punjab.
The hearing was adjourned indefinitely.
It is worth noting that the SC is scheduled to hear a contempt of court petition filed by Imran’s sister, Aleema Khan, against Prime Minister Shehbaz Sharif, as well as the government’s review petition against its August 18 order tomorrow.
The proceedings could bring the SC and the newly established FCC into an unusual jurisdictional clash; in a number of judgments, the FCC has already sought to define its position vis-à-vis the Supreme Court following the 27th Constitutional Amendment.
In one such ruling, the FCC held that its decisions were binding on all courts, including the SC. It also observed that, following the 27th Amendment, the Supreme Court no longer possessed the authority to interpret the Constitution and law in matters falling within the FCC’s constitutional jurisdiction.
