ISLAMABAD: The Federal Constitutional Court (FCC) on Tuesday summoned, under Article 175-E of the Constitution, the complete record of cases related to the transfer of PTI founder Imran Khan to Shifa International Hospital pending before the Supreme Court.
Article 175-E, which was inserted in the Constitution through the 27th Constitutional Amendment, empowers the FCC to call for the record of any case and authorises it to decide matters involving major questions of constitutional law.
In this instance, the case records were summoned by a three-member FCC bench, headed by Chief Justice Aminuddin Khan and including Justices Ali Baqar Najafi and Aamer Farooq, while hearing a plea filed by three Adiala jail inmates. The prisoner have sought their transfer to a private hospital for medical examination, similar to the relief granted to Imran via an August 18 SC order.
As the bench called for the records of Imran’s cases on Tuesday, it also sought records of any similar matter from high courts.
The bench observed that since the present matter, relating to the provision of medical facilities to the three Adiala inmates, originated from the Aug 18 SC order, the court was summoning the entire case record. The bench also said it would frame constitutional questions for final determination in its order, which would be issued later.
The records were summoned after Attorney General for Pakistan (AGP) Mansoor Usman Awan told the court that after the passage of the 27th Amendment, the SC no longer had the authority to protect fundamental rights; rather, he argued, such powers now rested with the FCC.
After the insertion of Article 175-F, any matter relating to constitutional interpretation or constitutional rights would now be heard by the FCC, AGP said.
Within this context, AGP Awan contended that it would be prudent for the FCC to call for the complete record of the case pending before the SC.
Citing the Aug 18 order, the AGP said the matter had become a “an issue” since several inmates were now approaching courts seeking similar facilities as extended to Imran.
At one point, Chief Justice Khan observed that the Constitution and the law must apply equally to the rich and the poor.
When Justice Najafi asked whether the government had raised any objections before the SC during the August 18 hearing, AGP recalled that Additional Attorney General (AAG) Chaudhry Aamir Rehman had objected, but the court issued its order anyway.
“Shouldn’t the SC have first determined the maintainability of the petition?” wondered Justice Najafi, adding that “the fundamental question before us concerns which court will now hear cases regarding constitutional interpretation and fundamental rights”.
“That is precisely the case,” replied the AGP.
Justice Farooq observed that the SC had issued only an interim order on Aug 18.
Referring to the case relating to the three inmates, the AGP suggested that the court could order the constitution of a medical board if it deemed fit.
Inmates had moved the Islamabad High Court (IHC) last month seeking relief after the SC’s Aug 18 order.
However, the petitions were dismissed on August 31 after the IHC held that a prisoner had no legal right to be transferred to a private hospital of his choice and the primary responsibility for prisoners’ treatment rested with the state’s administrative structure and government hospitals. Subsequently, the inmates approached the FCC last week to challenge the IHC order.
The development also comes a day before the SC is to resume hearing on the case concerning Imran’s health on Sept 16.
SC was also expected to take up the contempt of court proceedings moved by Imran’s sister, Dr Uzma Khan, accusing government functionaries of violating the Aug 18 directive as the former premier was taken to Pakistan Institute of Medical Sciences (Pims) instead of Shifa International Hospital.
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