ISLAMABAD, Nov 20 A legal and administrative difficulty may arise when the Islamabad High Court (IHC) commences regular functioning on Dec 13 as the Act assented by President Asif Ali Zardari about its establishment is silent about transfer of suits, revisions and appeals pending in the subordinate judiciary of the federal capital though it specifically mentions transfer of matters from the Lahore High Court.

A number of cases were transferred or filed before different civil courts of Islamabad after the July 31, 2009, verdict of the Supreme Court which, while holding the Nov 3, 2007 emergency as unconstitutional, had ordered closure of the Islamabad High Court.

“Since the Constitution (Amendment) Order, 2007 being the President's Order No 5 of 2007 and the Islamabad High Court (Establishment) Order being President's Order No 7 of 2007 establishing Islamabad High Court for the Federal Capital Territory, have been declared to be un-constitutional and of no legal effect, therefore, the said Islamabad High Court shall cease to exist forthwith. All judicial matters pending before the said high court before the passing of this order shall revert/stand transferred to the courts which had jurisdiction in the said matters before the promulgation of afore-mentioned President's Order No 5 of 2007 and President's Order No 7 of 2007 promulgated on 14th December, 2007,” the July 31 verdict had said.

Now Act No XVII of 2010 which President Zardari assented on July 29, 2010, and later published in the gazette of Pakistan by the National Assembly on Aug 2, 2010 provides that suits exceeding Rs10 million will be tried by the IHC. But the law does not suggest any thing what to do with the suits pending in civil courts of Islamabad.

Section 9 of the Act that deals with the transfer of proceedings says that all appeals, petitions and other proceedings pending before in the Lahore High Court or in another high court (Rawalpindi bench of the LHC) in relation to Islamabad Capital Territory immediately before the appointed date shall stand transferred to the Islamabad High Court.

“The absence of provision for transfer of cases from subordinate court to newly created IHC indicates lack of deep thinking on the part of the legislative authority,” commented Chaudhry Naseer Ahmed, a senior constitutional expert and an advocate of the Supreme Court.

After the July 31 verdict, the counsel recalled, the subordinate courts in Islamabad started to exercise jurisdiction in all matters. Now the cases pertaining to Rs10 million or more pending in these courts have to be transferred to the IHC. The jurisdiction of the defunct IHC was Rs2.5 million but that of the new IHC has been raised to Rs10 million.

As such, the counsel explained, all suits of Rs10 million or more under the new law were to be tried by the IHC. Thus it is necessary that provisions should be made to transfer suits, appeals and revisions pending in the lower judiciary of Islamabad to the newly established high court.

Quite a few matters of Rs10 million or more were pending in the subordinate judiciary of the federal capital, the counsel said, adding that without a provision for the transfer in the law, either the LHC would have to direct for the transfer of matters to the newly established IHC or the federal government had to remove the difficulty by exercising power under Section 13 of the same Act.

Section 13 of the Act provides for removal of difficulties by explaining that if any difficulty arises in giving effect to any provision of this act within on year of its commencement, the federal government in consultation with the chief justice of the IHC may remove such difficulty.

Disparity between courts

The counsel highlighted another anomaly in the law by stating that while the original jurisdiction of the Sindh High Court is still Rs3 million or more the original jurisdiction of the IHC has been fixed at Rs10 million.

Such a disparity was not understandable, he commented, saying parity in fixing the original jurisdiction of the high court should have been maintained. “The properties in Karachi are not less expensive than properties in Islamabad and such arbitrariness should not have been shown,” he observed.

Chaudhry Naseer was also not happy with the current building that will house the IHC, saying a proper building on the Constitution Avenue should be provided for the IHC to match its high stature.

For the present, the IHC can be established in the building of the Federal Shariat Court which after losing different types of jurisdiction has left with little work.

The current building of the IHC far away from the Constitution Avenue would not only be derogatory to the new high court but also would cause great inconvenience to lawyers and litigants who would have to traverse long distance in reaching from the high court to the Supreme Court on a daily basis, he said.