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.
The court also sought records of any similar matter taken up by high courts.
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 prisoners have sought their transfer to a private hospital for medical examination, similar to the relief granted to Imran via an August 18 SC order.
In the order, the SC had directed the government to shift Imran to Shifa International Hospital within two days for examination and treatment by a multidisciplinary medical board.
The FCC 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.
Following the arguments, the FCC summoned Imran’s case records and adjourned the hearing without fixing the date for the next session.
The FCC’s directives came a day before the SC was to resume hearing a case concerning Imran’s health.
The plea
The three Adiala jail inmates had initially moved the Islamabad High Court (IHC), seeking relief after the SC’s Aug 18 order.
The appellants include Muhammad Ilyas Khan, Mohammad Ismail Hussain and Owais Altaf.
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.
They have pleaded before the FCC that the IHC’s be declared null and void, and have sought the same medical facilities as available to Imran.
The petition states that Article 25 of the Constitution mandates equal treatment for all citizens and when the Aug 18 SC order was still in force, the three petitioners should also be granted the same treatment as ordered for Imran.
The petitioners have also requested that in the context of the SC order, a direction should also be issued to allow them to communicate with family members abroad through WhatsApp call in the similar fashion as had been directed for Imran.
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