Islamabad High Court (IHC) Chief Justice Aamer Farooq. PHOTO: FILE
ISLAMABAD:
The recently established Federal Constitutional Court (FCC) has declared that the oath taken by judges is not a mere formality: it clearly obligates judges to “preserve, protect and defend the Constitution.”
“This indicates that the oath is not intended to protect laws (although it certainly does not mean that laws passed by Parliament should not be followed or respected), but specifically to safeguard the Constitution itself,” states the first written ruling from the newly created FCC.
The verdict, written by Justice Aamer Farooq, was delivered by a division bench after hearing a case related to Section 109-A of the Income Tax Ordinance, 2001.
According to the text, if a judge of a high court is faced with a situation where a law conflicts with the Constitution, then the question arises: how can he truly “preserve, protect and defend” the Constitution if he is unable to repeal the contested law.
“The reality is that he cannot. As soon as a judge complies with a law incompatible with the Constitution, he transforms his oath into simple words recited before taking office.
“Therefore, it is inherent in the jurisdiction and duty of a high court to strike down laws which are ultra vires the 1973 Constitution,” he said.
By this order, the FCC set aside an interim order passed by a constitutional bench of the Sindh High Court (SHC) and remanded the matter to the competent constitutional bench, directing that the interim application be afresh decided in accordance with law.
The court observed that an interim order can only be made by a forum competent to pass the final judgment. It held that the constitutional bench of the SHC did not have full jurisdiction to hear a matter of this nature and that an interim order issued without jurisdiction had no legal force.
The judgment further noted that the petitioner had declared foreign assets under the 2018 amnesty scheme, following which a notice was issued under Section 109-A of the Income Tax Ordinance. An appeal was then filed against the order of the constitutional bench of the SHC.
The court emphasized that the determination of jurisdiction is the central issue in any legal dispute and must be resolved at the outset of the legal proceedings. He addressed the question of whether a high court was overstepping its authority by declaring a law invalid, answering the question in the negative.
The judgment said that the high courts possess the power of judicial review as an inherent and essential feature of the constitutional framework. Under Article 199(1)©, read with Article 8 of the Constitution, the High Courts are empowered to review legislation in the context of fundamental rights.
However, under the 27th Constitutional Amendment, only the Constitutional Benches of the High Courts are authorized to review the validity of legislative provisions. Ordinary judges of a high court, he said, do not have this competence. The matter could therefore only be heard by the constitutional bench of the SHC.
The FCC also disagrees with the notion that a temporary order cannot be challenged before it. He clarified that the application of a law can only be restricted if its provisions are first declared unconstitutional and annulled.
