ISLAMABAD:
The Supreme Court of Pakistan on May 12 ordered the Islamabad High Court to decide applications filed by rights activist Imaan Mazari and her husband Hadi Ali Chatta for the suspension of their sentences, preferably within two weeks.
However, in its latest ruling, the Federal Constitutional Court (FCC) has held that any ruling or direction to a Supreme Court that imposes a policy or case-fixing is tantamount to encroachment on the judicial and administrative independence of such courts – revealing a rift between the two courts.
“All decisions of the High Court can be challenged before the Supreme Court and/or the Federal Constitutional Court, which does not make the referred court subordinate in any way.
“Writs issuing directions to the High Courts should be made sparingly and should be worded appropriately as they have their independent duty schedule and case management arrangements along with case fixation policies.
“Any order or direction superimposing such policy or case fixation amounts to encroachment on the judicial and administrative independence of such courts,” said a three-page judgment authored by Justice Aamer Farooq.
Justice Farooq headed a division which rejected the request of the counsel for a respondent to have directions issued to the High Court for a speedy decision in the matter.
The court noted that requests of this nature are made with considerable frequency, and superior courts often issue such orders leading to early decisions.
“The judicial system as laid down in the Constitution of the Islamic Republic of Pakistan, 1973, is at present 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 SC or FCC. However, within the scheme, the district courts and other courts are subordinate to the respective high court under Article 203 of the Constitution, 1973,” the order said.
However, the court noted that sometimes the pressing or urgent nature of a controversy may require a post-remand case to be heard by the respective High Court at an early stage. It emphasized that such observations must be carefully worded and should not affect the independence of the High Court.
“Even otherwise, directions issued are generally of an administrative nature rather than judicial. Where even a high court issues directions for trial or notifies, they are of an administrative nature and do not have binding consequences, but are indicative in that they request the courts to take up the case on a priority basis considering the urgency of the case,” the judgment added.
In concluding, the FCC noted that the writ petition filed by the respondent would be deemed pending in the Islamabad High Court and expressed expectation that the matter would be taken up at the earliest considering the urgency involved.
Earlier, the FCC had already ruled that the supremacy of the constitutional ruling now belongs to it and that all courts, including the Supreme Court, are bound by its opinions.
Legal experts believe that a clear divergence has emerged in the jurisprudence developed by the FCC and the Supreme Court following the 27th Amendment.
The two courts have already expressed conflicting views on the government’s marriage policy. The Supreme Court has held that the policy creates a legitimate expectation for married officials that they will be accommodated rather than subject to arbitrary variance without justification.
In contrast, the FCC has ruled that the marriage policy cannot be used as a basis for indefinite posting and does not create any vested right.
Similarly, while the Supreme Court on May 12 ordered the IHC to decide the Imaan Mazari case within a specific time frame, the FCC’s recent ruling indicates disagreement with such an approach, especially where deadlines are imposed for the high courts to decide cases.
