Islamabad High Court (IHC) Chief Justice Aamer Farooq. PHOTO: FILE
ISLAMABAD:
The newly created Federal Constitutional Court (FCC) has stated that the oath taken by judges is not just a formality – it clearly binds judges to “preserve, protect and defend the Constitution”.
“This indicates that the oath is not aimed at protecting statutes (although this certainly does not mean that laws passed by Parliament are not to be followed or upheld), but specifically at protecting the Constitution itself,” the newly created FCC’s first written ruling said.
The judgment, authored 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.
It said that if a Supreme Court judge is faced with a situation where a statute conflicts with the Constitution, the question arises: how can he really “preserve, protect and defend” the Constitution if he is unable to strike down the impugned statute.
“The reality is that he cannot. The moment a judge bows to a law that violates the Constitution, he turns his oath into nothing more than words recited before taking office.
“Therefore, it is inherent in the jurisdiction and duty of a Supreme Court to strike down laws ultra vires the Constitution, 1973,” it said.
Through the ruling, the FCC set aside an interim order passed by a constitution bench of the Sindh High Court (SHC) and remanded the case back to the relevant constitution court with orders that the interim petition be decided afresh in accordance with law.
The court noted that an interim order can only be issued by a forum competent to pass final judgment. It held that the Constitutional Court of the SHC did not have complete jurisdiction to hear a case of this nature and that an interim order issued without jurisdiction has no legal effect.
The judgment further observed 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 by the Constitution Bench of the SHC.
The court emphasized that the determination of jurisdiction is the central issue in any legal dispute and must be decided at the beginning of a trial. It considered the question whether a High Court exceeds its power in declaring a statute void and answered the question in the negative.
The judgment held that higher courts have the power of judicial review as an inherent and essential feature of the constitutional framework. Pursuant to Article 199, subsection 1, read with Article 8 of the Constitution, the Supreme Court has the power to examine legislation in the context of fundamental rights.
However, under the 27th Constitutional Amendment, only constitutional bodies in the Supreme Court are authorized to review the validity of statutory provisions. Regular benches of a High Court, it said, lack such jurisdiction. Therefore, the case could only be heard by the SHC’s Constitutional Court.
The FCC also disagreed with the view that a preliminary injunction cannot be challenged before it. It clarified that the implementation of a law cannot be limited unless its provisions are first declared unconstitutional and struck down.
