ISLAMABAD:
On May 12, the Supreme Court of Pakistan ordered the Islamabad High Court to rule on petitions filed by human 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, held that any order or directive to a high court which superimposes a policy or case fixation amounts to an intrusion into the judicial and administrative independence of these courts, thereby revealing a gulf between the two courts.
“All decisions of the High Court are subject to challenge before the Supreme Court and/or the Federal Constitutional Court, which in no way subordinates the court seized.
“Orders giving directions to the higher courts should be made sparingly and should be framed in appropriate terms as they have independent roster and case management programs and case fixation policies.
“Any order or direction which superimposes such policy or fixation of a case amounts to an intrusion into the judicial and administrative independence of these courts,” said a three-page judgment written by Justice Aamer Farooq.
Justice Farooq headed a division bench which rejected the lawyer’s application for a defendant to ask the High Court to issue directions to take a speedy decision in the matter.
The Court observed that applications of this nature are made very frequently and superior courts often pass such orders directing speedy decisions.
“The judicial system as provided for in the Constitution of the Islamic Republic of Pakistan, 1973 currently provides that there are five independent high courts in the country established 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, under the scheme of arrangement, the district judiciary and other courts are subordinate to the respective high court in accordance with Article 203 of the 1973 Constitution,” the order said.
The court, however, noted that sometimes the exigencies or urgency of a controversy may necessitate that in the event of a referral, the matter should be heard by the competent high court as soon as possible. She stressed that these observations must be made carefully and must not undermine the independence of the High Court.
“Even otherwise, the directions issued are generally administrative rather than judicial in nature. When even a high court issues directions to the trial courts or the lower courts, these are administrative in nature and do not entail binding consequences, but are recommendatory, directing the courts to take up the matter on priority in view of the urgency of the matter,” the judgment added.
In conclusion, the FCC noted that the writ petition filed by the respondent would be considered pending before the Islamabad High Court and expressed hope that the matter would be taken up at the earliest, considering the urgency.
Previously, the FCC had already ruled that supremacy in constitutional adjudication now rested with it and that all courts, including the Supreme Court, were bound by its decisions.
Legal experts believe that a clear divergence has emerged in the case law developed by the FCC and the Supreme Court in the wake of the 27th Constitutional Amendment.
The two courts have previously expressed divergent views on government policy on marriage. The Supreme Court held that this policy creates a legitimate expectation for married public employees to be accommodated, rather than being subject to arbitrary variances without justification.
In contrast, the FCC has ruled that the marriage policy cannot be used as a reason for publication for an indefinite period and does not create any vested rights.
Similarly, while the Supreme Court on May 12 ordered the IHC to decide the Imaan Mazari case within a specified time, the recent FCC judgment indicates disagreement with such an approach, particularly when deadlines are imposed on high courts to decide cases.
