Syeda Aamna Hasan is a law graduate and LLM student and works as a legal researcher covering legal developments in Pakistan.
On Wednesday, September 16, the Supreme Court of Pakistan suspended proceedings regarding the medical treatment and planned transfer of the imprisoned former prime minister and founder of Pakistan Tehreek-e-Insaf (PTI), Imran Khan, to Shifa International Hospital after a constitutional dispute arose over the respective jurisdictions of the Supreme Court and the newly established Federal Constitutional Court (FCC). A three-judge Supreme Court bench comprising Justice Shahid Waheed, Justice Naeem Akhtar Afghan and Justice Ishtiaq Ibrahim heard petitions on Khan’s medical treatment, access to his family and implementation of an earlier Supreme Court order ordering his transfer to a private hospital.
Accordingly Dawn News, The Supreme Court expressed reservations about the FCC’s order to recall the case in question from the Supreme Court and set it up for hearing before the Constitutional Court. The Supreme Court then postponed the proceedings for three weeks and asked Pakistan’s Attorney General Mansoor Usman Awan for advice on the jurisdictional issues.
The dispute stems from the Supreme Court’s interim order on August 18, which directed authorities to shift Khan from Adiala Prison to Shifa International Hospital in Islamabad for medical examination and treatment and ordered the formation of a multidisciplinary medical committee for his examination and treatment. The interim injunction was issued without prejudice to the rights and claims of the parties. Dawn News reported that the court had ordered the government to transfer Khan there Shifa International Hospital within two days of the court order to provide his complete medical records and to provide instructions regarding Khan’s family meetings and communication with his sons.
The implementation of this order has been controversial. Instead of being transferred to Shifa, government officials took Khan to the state-run Pakistan Institute of Medical Sciences (PIMS) for medical examination for security reasons. According to Geo News, doctors from Shifa were involved in Khan’s medical treatment Test at PIMS. Khan’s sister, Dr. Uzma Khan, then filed a contempt case in the Supreme Court Non-compliance with the directive of August 18th.
The Supreme Court heard a contempt case on September 16. Dr. Uzma Khan argued that if the authorities found it difficult to implement the August 18 order, they should have approached the court for clarification instead of taking a different course of action. A report Regarding the contempt application, he noted that the Supreme Court fixed the application for September 16 after considering the objections raised by the registry office. The contempt proceedings were therefore part of the matter before the Supreme Court when the jurisdictional dispute with the FCC arose.
The legal situation changed on September 15th when the Federal Constitutional Court intervened in corresponding proceedings. The FCC heard appeals from three Adiala Prison prisoners: Muhammad Ilyas Khan, Muhammad Isamil Hussain and Owais Altaf, all of whom sought access to private medical facilities for treatment like that provided to Khan. The Islamabad High Court had dismissed their petitions on August 31, which the prisoners then did approached the FCC. According to Dawn News, the FCC is called complete records of the cases related to Khan’s proposed transfer to Shifa that were pending before the Supreme Court and the Supreme Court.
The FCC trusted to Article 175-E of the Constitution, inserted by 27Th Constitutional amendment authorizing it to require the recording of a case and to deal with matters involving important questions of constitutional law. In the case involving the three Adiala detainees, the FCC sought the records because their claims for similar medical assistance arose in connection with the Supreme Court’s Aug. 18 order regarding Khan.
The FCC’s Sept. 15 order raised a question of jurisdiction because the Supreme Court was already considering Khan’s hospital transfer case. The FCC directed its office to request the relevant documents from the Supreme Court and resolve the matters before it – language that became central to the Sept. 16 hearing. During the hearing, Justice Shahid Waheed pointed out that the court was particularly concerned about the direction to resolve the cases before the FCC and questioned whether this step fell within the powers of the FCC under Article 175-E.
Pakistan Attorney General Mansoor Usman Awan appeared before the Supreme Court on September 16 and explained the government’s constitutional position. The Supreme Court asked him for assistance on whether the FCC could request records from a matter pending before the Supreme Court and then proceed to litigate those cases. The Express Tribune reported that the Attorney General put forward the argument that the jurisdiction of the two superior courts was constitutionally established and that two superior courts could not simultaneously exercise jurisdiction over the same matter. However, the Supreme Court indicated that it would consider whether the FCC’s order was binding on it.
The dispute goes far beyond Khan’s individual medical treatment and raises a broader constitutional question about the relationship between the Supreme Court of Pakistan and the FCC. The FCC case arose from separate requests from prisoners seeking medical assistance comparable to that provided to Khan.
The Supreme Court also examined whether the remaining parts of its August 18 order were implemented. The bench asked about Khan’s access to his family and whether he had been allowed to communicate with his children. According to a private Media channel report Based on the September 16 hearing, the court indicated that the August 18 order remained in effect. The court then questioned the government’s position that the treatment could not be carried out in a private hospital as long as the Supreme Court’s medical treatment orders remained in force. The government claimed that security considerations influenced this Decision Khan should be taken to PIMS and not Shifa International Hospital.
Khan’s legal representatives have argued that authorities have an obligation to comply with the Supreme Court’s order or first seek clarification from the court before taking any other course of action. These competing positions remain part of the ongoing legal process and have not been resolved by the Supreme Court.
The Sept. 16 hearing ended without a final decision on the contempt charges or the jurisdictional dispute between the two courts. Instead, the Supreme Court postponed the proceedings for three weeks to allow the attorney general to prepare opinions on constitutional issues. The news reported that the Court stated that it wanted further assistance from the Attorney General on the due process and the extent to which the FCC’s order had impacted the Supreme Court proceedings.
The August 18 order remains in effect for now, and the question of the FCC’s authority to seize the Supreme Court records and proceed with related matters remains unresolved.
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