Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
In a ruling with far-reaching constitutional implications, the Supreme Court has decided to close a key legal loophole created by the 27th Constitutional Amendment, holding that appeals arising from family and rent cases decided by the high courts remain within its appellate jurisdiction.
The verdict clears up an ambiguity that had triggered objections at the registry level and sparked debate within the legal community over whether such cases were now barred from reaching the apex court.
The clarification came in a five-page judgment written by Chief Justice of Pakistan Yahya Afridi, while ruling on upholding a petition that the Supreme Court registrar had earlier opposed.
The objection was raised on the ground that the impugned judgment was passed by a high court under Article 199 of the Constitution in a rent case and was therefore not maintainable before the Supreme Court under the new constitutional provision introduced by the 27th Amendment.
The Court clarified that the constitutional bar to the appellate jurisdiction of the SC applies only to cases which actually fall within the ambit of Section 175F(1).
Reading section 185(3) in conjunction with its provision, which states that no appeal is possible in cases to which section 175F(1) applies, the judgment held that the restriction is narrowly limited and cannot be extended beyond its express scope.
Since rent and family matters are explicitly excluded from section 175F(1)(c), such cases cannot be treated as falling under section 175F at all. Accordingly, petitions arising from rent and family disputes remain within the appellate jurisdiction of the SC under Article 185(3), subject to the grant of leave.
Article 185(3) of the Constitution functions as a general source of appellate jurisdiction of the SC in respect of judgments, decrees, orders or sentences of a high court, subject to the exclusion contained in its provision, namely, cases to which sub-section (1) of Article 175F applies.
Section 175F defines the appellate jurisdiction of the Federal Constitutional Court and, by virtue of the proviso to subsection (1)(c), expressly excludes from its jurisdiction matters relating to rents and family matters.
The judgment explained that firstly, “Article 185(3) of the Constitution functions 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, namely cases to which clause (1) of Article 175F applies. expressly excludes, among other things, from its jurisdiction matters relating to rents and family matters.”
It noted that the question which therefore arises and which is at the heart of the present objection is whether judgments or orders of a high court in matters relating to rent and family, which, by reason of the express exclusion from their provision, do not fall within the scope of Article 175F(1) of the Constitution and are therefore to be considered as cases “to which subsection (1) of Article 175F applies” for the purposes of the subject to Article 185, paragraph 3.
“In other words, the question is whether the express exclusion of rent and family issues from the appellate jurisdiction of the Federal Constitutional Court has the effect of removing these issues from the appellate framework beyond the High Court, including the Supreme Court, or whether, by that very exclusion, they escape the scope of Article 175(1), thereby attracting the appellate jurisdiction of this Court under Article 185(3), subject authorization”, observes the judgment.
“Judicial exaggeration”
However, the order divides legal opinion.
Former Attorney General Waqar Rana called the decision 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 high court level.
“These issues, family and rent, were previously submitted to SC only through petitions. What will happen if someone challenges the family law or rent law vires? In that case, SC obviously cannot assume jurisdiction and the FCC has no jurisdiction over such issues under the Constitution. Furthermore, in all matters arising from rulings made under Section 199, jurisdiction rests with the FCC,” he added.
Rana further said that jurisdiction must be expressly granted to any court and not be impliedly presumed.
On the other hand, advocate Waqas Ahmad said the chief justice had addressed a major constitutional issue and had effectively endorsed 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.
Advocate Hafiz Ahsaan Ahmad Khokhar, however, fully supported the order, stating that the SC had undertaken a correct, purposive and harmonious interpretation of Articles 175(1)(f), 175(f)(c) and Article 185(3) of the Constitution, thereby reaffirming that the constitutional jurisdiction of the SC cannot be curtailed by inference or implication.
According to him, the judgment faithfully preserves the constitutional system governing the judicial hierarchy and safeguards the appellate and constitutional jurisdiction of the SC.
He further said that the decision reflects a clear recognition and principled demarcation of jurisdiction between two of the most important superior courts of Pakistan, namely the SC and the FCC, which he said is a healthy and positive development in the field of constitutional adjudication.
Although family and rent issues were expressly excluded from the FCC’s jurisdiction, it noted that no such exclusion exists with respect to the SC. Therefore, the Supreme Court continues to possess full appellate jurisdiction to hear such cases under Article 185(3) of the Constitution.
