Police officers walk past the Supreme Court of Pakistan building in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
In a decision with far-reaching constitutional implications, the Supreme Court has moved to fill an important legal void created by the 27th Amendment, holding that appeals on family and tenancy issues decided by the Supreme Court remain within its appellate jurisdiction.
The ruling resolves an ambiguity that had sparked objections at the registry level and sparked debate in the legal community about whether such cases were now barred from reaching the Supreme Court.
The clarification came in a five-page judgment authored by Chief Justice of Pakistan Yahya Afridi while deciding whether a petition that had earlier been objected to by the Supreme Court registrar was maintainable.
The objection was raised on the grounds that the judgment under appeal was handed down by a high court pursuant to Section 199 of the Constitution in a tenancy case and therefore could not be upheld before the Supreme Court in accordance with the new constitutional dispensation introduced by the 27th amendment.
The court clarified that the constitutional limitation on the SC’s appellate jurisdiction applies only to cases that actually fall within the ambit of Article 175F(1).
By reading article 185, par. 3, together with its proviso, which states that no appeal can be made in cases where Article 175F, para. 1 applies, the judgment held that the limitation is narrowly limited and cannot be extended beyond its express scope.
As tenancy and family relationships are expressly exempted from Article 175F, subsection 1, letter c), such cases cannot be treated as falling under Article 175F at all. As a result, petitions arising out of tenancy and family disputes remain within the appellate jurisdiction of the SC under Article 185(1). 3, subject to the granting of leave.
Article 185, subsection 3, of the Constitution acts as a general source of appellate jurisdiction of the SC in respect of judgments, decrees, orders or judgments of a High Court, subject to the exclusion contained in its proviso, namely, cases where clause (1) of Article 175F applies.
Article 175F establishes the appellate jurisdiction of the Federal Constitutional Court and, by virtue of the proviso to clause (1)(c), expressly excludes from its jurisdiction matters relating to tenancy and family relations.
The judgment explained that first, “Article 185(3) of the Constitution operates as a general source of appellate jurisdiction of the Court in respect of judgments, decrees, orders or judgments of a High Court, subject to the exclusion contained in its proviso, namely, cases to which clause (1) of Article 175F applies. The jurisdiction of the Federal Constitutional Court and by virtue of the proviso to clause (1)(c) expressly excludes, inter alia, matters relating to tenancy and family relations from its jurisdiction”.
It noted that the question which consequently arises and is at the heart of this objection is whether judgments or orders of a High Court relating to tenancy and family matters, which, by reason of the express exclusion in its proviso, do not fall within Article 175F(1) of the Constitution. the reservation to article 185, subsection
“In other words, the question is whether the express exclusion of tenancy and family cases from the Federal Constitutional Court’s appellate jurisdiction operates to remove such cases entirely from the appellate framework outside the High Court, including the Supreme Court, or whether by this very exclusion they stand outside the application of Article 175(1) judgment observed.
‘Judicial assault’
However, the executive order has divided legal opinion.
Former Additional Attorney General Waqar Rana termed the ruling as judicially overreaching, arguing that it amounted to interpretation used to overcome drafting errors, which could also be seen as a deliberate and deliberate failure of Parliament to give finality to such cases at the Supreme Court level.
“These cases, family and rent, used to come to the SC only through petitions. What will happen if someone challenges the vires of the family law or the rent law? In that case, of course, the SC cannot assume jurisdiction and the FCC has no jurisdiction in such cases under the Constitution. Also, in all cases arising out of/decisions made under Article 199, he belongs to the jurisdiction of the FCC.”
Rana further stated that jurisdiction must be expressly given to any court and not implicitly assumed.
On the other hand, Advocate Waqas Ahmad said the Chief Justice had dealt with a major constitutional issue and had effectively agreed with Justice R. Mansoor Ali Shah’s reasoning in the Dewan Motors case.
“In my view, this is the correct legal approach: a question of jurisdiction should be decided by the same body as the objection raised,” he added.
However, Advocate Hafiz Ahsaan Ahmad Khokhar fully supported the order stating that the SC had made a correct, expedient and harmonious interpretation of Article 175(1) of the Constitution. 1, letter f), Article 175, subsection
According to him, the judgment faithfully preserves the constitutional arrangement governing the judicial hierarchy and protects the appellate and constitutional jurisdiction of the SC.
He further stated that the decision reflects a clear recognition and principled delimitation of jurisdiction between two of Pakistan’s most important superior courts, namely SC and FCC, which he said was a healthy and positive development in constitutional courts.
While family and tenancy relationships have been expressly excluded from the FCC’s jurisdiction, he noted that no such exclusion exists with respect to the SC. As a result, the Supreme Court continues to have full appellate jurisdiction to hear such cases under Article 185(1). 3, of the constitution.
