Supreme Court of Pakistan Orders Islamabad High Court to Decide Mazari and Chatta Case
On May 12, the Supreme Court of Pakistan ordered the Islamabad High Court (IHC) to decide applications filed by rights activist Imaan Mazari and her husband Hadi Ali Chatta seeking suspension of their sentences. The Federal Constitutional Court (FCC), in its latest judgment, held that any order or direction to a high court that superimposes a policy or case fixation amounts to intrusion into the judicial and administrative independence of such courts.
The FCC’s Judgment on Judicial Independence
All decisions of the IHC are challengeable before the Supreme Court and/or the FCC, which does not make the referred court subordinate in any manner. The FCC emphasized that orders issuing directions to the high courts should be made sparingly and must be couched in appropriate words, as they have their independent roster and case management schemes, along with policies for case fixation.
The Scheme of Judicature Under the Constitution
The scheme of judicature under the Constitution of Pakistan provides for five independent High Courts created under Part VII, Chapter 3. Each high court is an independent constitutional court and is not subordinate to either the Supreme Court or the FCC. However, within the scheme of arrangement, the district judiciary and other courts are subordinate to the respective high court as per Article 203 of the Constitution.
The FCC’s Ruling on Urgency and Directions
The FCC noted that at times exigency or urgency of a controversy may require that, upon remand, a matter be heard by the respective high court at an early date. The FCC emphasized that such observations must be carefully worded and should not affect the independence of the high court. Generally, directions issued are administrative in nature rather than judicial.
The FCC’s Judgment on Writ Petition
At the conclusion, the FCC noted that the writ petition filed by the respondent would be deemed pending before the IHC and expressed the expectation that the case would be taken up at the earliest, keeping in view the urgency involved. Earlier, the FCC had already ruled that supremacy in constitutional adjudication now vests in it, and that all courts, including the Supreme Court, are bound by its pronouncements.
Divergence in Jurisprudence Between FCC and Supreme Court
Legal experts believe that a clear divergence has emerged in the jurisprudence developed by the FCC and the Supreme Court following the 27th Constitutional Amendment. The two courts have already expressed conflicting views on the government’s wedlock policy, with the Supreme Court holding that it creates a legitimate expectation for married civil servants while the FCC ruled that it cannot be used as grounds for indefinite posting or create any vested right.