Two apex courts on a collision course

The Federal Constitutional Court (FCC) has passed an unprecedented order seeking from the Supreme Court the complete record of several cases relating to former prime minister Imran Khan cases during the hearing of which the SC last month ordered the immediate transfer of incarcerated former prime minister Imran Khan to a private medical facility. The FCC passed the order just 24 hours before an SC hearing of a contempt petition against Prime Minister Shehbaz Sharif and others for allegedly failing to implement its hospitalisation directive. On August 18, the SC ordered that Imran Khan be shifted from Adiala Jail to Islamabad's Shifa International Hospital within two days for medical examination and treatment, while directing the government to constitute a specialised medical board for his care. A three-member SC bench comprising Justice Shahid Waheed, Justice Naeem Akhter Afghan and Justice Ishtiaq Ibrahim also directed the government to facilitate regular meetings between Imran and his family members and telephonic conversations between the PTI founder and his sons. In the wake of the Supreme Court order, three inmates at Adiala Jail approached the Islamabad High Court (IHC), seeking treatment at private hospitals and permission to speak to their families abroad via WhatsApp. The IHC on August 31 dismissed the petitions, stating that the SC order was interim in nature. Interestingly, the inmates, instead of filing an intra-court appeal, approached the FCC on September 8. The FCC admitted the appeals and its three-member bench headed by Chief Justice Amin-ud-Din Khan and comprising Justice Ali Baqar Najafi and Justice Aamer Farooq took up the matter on Monday. Resuming the hearing of the appeals on Tuesday, Chief Justice Khan observed that the petitioners' position was that the Constitution and law should apply equally to the rich and the poor. Justice Najafi asked Attorney General for Pakistan (AGP) Mansoor Awan whether the government had raised an objection before the Supreme Court. The AGP replied that the Supreme Court had passed its order without issuing notice to the government. However, Additional Attorney General Amir Rehman had raised an objection before the court, he said. Justice Najafi then asked whether the Supreme Court should not have first determined the maintainability of the petition. The attorney general agreed, saying that the power to interpret the Constitution now rested with the FCC. Justice Najafi said the fundamental question before the court was one of jurisdiction. "The question is who can now hear a case involving constitutional interpretation and fundamental rights," he observed. AGP Awan told the court that under Article 175-E(5), the FCC could call for the record of any case pending before any court where a question concerning constitutional interpretation was involved. He contended that following the 27th Amendment, enforcing fundamental rights and interpreting the law and the Constitution fell within the FCC's domain. He said these powers and jurisdiction had been taken away from the Supreme Court following the omission of Article 184(3). The AGP requested the FCC to summon the records of all cases relating to Imran Khan pending before the Supreme Court so that the important constitutional questions could be interpreted and adjudicated. Later, the FCC directed its registrar to requisition from the Supreme Court the records of cases that are otherwise listed before a three-member Supreme Court bench for hearing today (Wednesday), potentially setting the stage for an unusual jurisdictional confrontation between the two apex courts. The FCC said the questions raised in the petitions had arisen as a consequence of the Supreme Court's August 18, 2026 order in Criminal Appeal No. 400/2025 and connected cases. It therefore deemed it necessary to examine those cases along with the petitions pending before it. Invoking Clause 5 of Article 175-E of the Constitution, the FCC ordered that the entire record of around eight similar cases related to Imran Khan pending before the Supreme Court be called for. The court directed its office to requisition all these cases from the Supreme Court through its registrar and fix them along with the appeals arising from the petitions for hearing. The FCC also issued notices to the respondents, including AGP Awan and the advocate generals, directing them to file concise statements. According to the order, submissions made by AGP Awan indicated that important questions involving interpretation of the Constitution and the jurisdiction of courts regarding enforcement of fundamental rights were involved. The FCC identified four questions for adjudication. First, it will examine which court has jurisdiction and competence to enforce fundamental rights under the Constitution. Second, it will determine what rights must be afforded to prisoners under the Constitution and the Pakistan Prison Rules, 1978. Third, it will examine the scope and extent of the state's obligations concerning the fundamental rights of prisoners. Fourth, it will consider what consequences may follow if any state functionary violates the fundamental rights of a prisoner. The court said these questions would be examined for constitutional interpretation. The FCC subsequently adjourned the hearing for an indefinite period. Uncertainty over SC hearing The FCC's order has triggered a debate over whether the Supreme Court will proceed with the related cases listed before its three-member bench today. The cause list of the Supreme Court cases, however, remains intact. The Supreme Court had fixed for hearing a contempt petition against Prime Minister Shehbaz Sharif and others over the alleged failure to implement its August 18 direction concerning Khan's transfer to Shifa International Hospital. One senior lawyer said that if the Supreme Court ultimately sends the case to the FCC, it would effectively establish the subordinate status of the Supreme Court. "Will the judges of the SC accept to have been demoted or resign?" the lawyer questioned. Barrister Tariq Mahmood Khokhar described the FCC order as "a belated obituary of the Supreme Court of Pakistan". He said the Supreme Court's decline had been a "predicted and predictable outcome" of the 26th and 27th Constitutional Amendments. "The Constitution was amended, not for constitutional reasons but for state reasons," Khokhar said. He said Pakistan had experienced a "Marbury v Madison moment" but added that chief justice of Pakistan was not John Marshall and had, in his view, instead spearheaded collaboration with the state. "A few, who had promised to resist from within the institution, were reduced to irrelevance," he said. Khokhar said the consequences "were and continue to be horrendous", including what he described as "the end of independent judiciary, diminished constitutional order, an unrepresentative executive, praetorian hegemony". "Such blatant capitulation of a constitutional institution from within defies credulity," he said. He further said the Supreme Court had become "near defunct". "Its unequivocal directions to the IHC in Imaan Mazari case were flaunted with impunity; its orders to shift Imran Khan to Shifa International Hospital were flagrantly violated. Evidently, the SC is not interested in asserting its authority," Khokhar said. He, however, pointed out that when it came to entitlement, the Supreme Court "jealously guards its parity with the FCC", referring to equal pay, perks, privileges and protocol.   'Defining moment' for Supreme Court Advocate Faisal Chaudhry said the FCC order itself was not surprising. "Since the initiation of the case, it was predicted by many journalists that the issue of Imran Khan's health may end up in the FCC. Therefore, the mode and manner of routing the petition before the FCC raises eyebrows," he said. Chaudhry further questioned the manner in which the matter had reached the FCC. He said a leave-to-appeal petition had been directly preferred before the FCC without filing an intra-court appeal, adding that several judgments had held that a direct appeal before the apex court was barred in such circumstances. "How can the court proceed with the petition without addressing the basic questions?" he asked. He argued that the constitutional position was otherwise clear, saying an appeal against a criminal review had to be heard and disposed of by the Supreme Court rather than the FCC. "It is also a defining moment for the SC. It has to be decided that if the SC will be treated as subordinate court by the FCC in the matters falling into their jurisdiction or it will surrender its position as apex court," he added.