LAHORE, Dec 17: The Lahore High Court on Monday restrained the federal government from setting up a federal high court in Islamabad under the Provisional Constitution Order No. 1 of 2007.
“The petitioner and the learned deputy attorney generals have raised complicated questions relating to the interpretation of several constitutional provisions, therefore, we restrain respondents from further undertaking any step towards the establishment of High Court for Islamabad Capital Territory until further orders,” the bench said.
The full bench comprising Justice Syed Shabbar Raza Rizvi, Justice Tariq Shamim and Justice Hasnat Ahmad Khan also summoned advocates S. M. Zafar, Waseem Sajjad, Khalid Ranjha, Mojeebur Rehman and Ahmar Bilal Soofi as amici curiae on January 9.
Challenging the establishment of the federal high court, Lahore-based lawyer Hassan Nawaz Makhdoom said amendments to Articles 175, 193, 194 and 198 of the Constitution were not required to be made in pursuance of the proclamation of emergency on Nov 3 and Provisional Constitution Order No. 1 of 2007.
The lawyer said in the ‘Tikka Iqbal Khan versus the Federation’ case, the Supreme Court had held the independence of judiciary sacrosanct and the basic structure of the Constitution unassailable. He pleaded that the amendments constituting the federal high court were tantamount to changing the basic structure of the 1973 Constitution and infringed upon the structure of judiciary.
“Thus the said amendments are illegal, without jurisdiction, mala fide, in excess of the powers of the then army chief and against the judgments of the SC rendered from time to time affirming the independency of judiciary.
“The declared objectives of the PCO do encompass the establishment of a High Court for the Capital Territory Islamabad and thus fall beyond the scope of the then army chief’s power to hold the Constitution in abeyance,” the lawyer said.
He said the exigencies warranting the extra-constitutional and extraordinary steps by the then army chief could not encompass the establishment of federal high court over and above the high court set up in the four provinces of Pakistan under Article 192 of the Constitution 1973.
The petitioner prayed the court to declare the impugned amendments in the PCO No. 1 of 2007 relating to the establishment of the federal high court as without lawful authority and of no legal consequence.
Representing the federal government, the law officers said the court could not judge the PCO because the Supreme Court had already validated it in Tikka Iqbal Muhammad Khan’s case.
Earlier, Justice Syed Shabbar Raza Rizvi had admitted the petition for regular hearing and sought formation of a larger bench for hearing after sending it to the LHC chief justice.
