Islamabad High Court (IHC) Chief Justice Aamer Farooq. PHOTO: FILE
ISLAMABAD:
The newly formed Federal Constitutional Court (FCC) has stated that the oath taken by judges is not a mere formality — it clearly binds the judges to “preserve, protect and defend the Constitution”.
“This indicates that the oath is directed not towards protecting statutes (although this certainly does not mean that the laws enacted by Parliament are not to be followed or upheld), but specifically toward safeguarding the Constitution itself,” said the newly established FCC’s first written judgment.
The verdict, authored by Justice Aamer Farooq, was issued by a division bench after hearing a case related to Section 109-A of the Income Tax Ordinance, 2001.
It said if a judge of a high court is faced with a situation in which a statute conflicts with the Constitution, then the question arises: how can he truly “preserve, protect and defend” the Constitution if he is unable to strike down the impugned law.
“The reality is that he cannot. The moment a judge bows to a law that is inconsistent with the Constitution, he turns his oath into nothing more than words recited before assuming office.
“Therefore, it is inherent in the jurisdiction and duty of a high court to strike down laws that are ultra vires to the Constitution, 1973,” it said.
Through the order, the FCC set aside an interim order passed by a constitutional bench of the Sindh High Court (SHC) and remanded the matter back to the relevant constitutional bench, directing that the interim application be decided afresh in accordance with law.
The court observed that an interim order can only be issued by a forum that is competent to pass the final judgment. It held that the SHC constitutional bench did not have complete jurisdiction to hear a case of this nature, and that an interim order issued without jurisdiction carries no legal force.
The judgment further noted that the petitioner had declared foreign assets under the 2018 Amnesty Scheme, after which a notice was issued under Section 109-A of the Income Tax Ordinance. An appeal was then filed against the order of the SHC’s constitutional bench.
The court emphasised that the determination of jurisdiction is the core issue in any legal dispute and must be settled at the outset of judicial proceedings. It addressed the question of whether a high court exceeds its authority by declaring a law invalid, answering the question in the negative.
The judgment stated that high courts possess the power of judicial review as an inherent and essential feature of the constitutional framework. Under Article 199(1)© read with Article 8 of the Constitution, high courts are empowered to examine legislation in the context of fundamental rights.
However, under the 27th Constitutional Amendment, only constitutional benches of high courts are authorised to review the validity of statutory provisions. Regular benches of a high court, it said, lack such jurisdiction. Therefore, the case could only be heard by the constitutional bench of the SHC.
The FCC also disagreed with the view that an interim order cannot be challenged before it. It clarified that the implementation of a law cannot be restrained unless its provisions are first declared unconstitutional and struck down.
