No govt representative appears in Imran Khan hospital transfer case, SC summons AGP

ISLAMABAD: The Supreme Court on Wednesday summoned Attorney General for Pakistan Mansoor Usman Awan after no government representative initially appeared before the court during the hearing of a case concerning the hospital transfer of PTI founder and former prime minister Imran Khan.

Barrister Ali Zafar appeared before the court on behalf of Mishal Yousafzai, while Additional Attorney General Rana Asad was appeared later.

During the proceedings, the additional attorney general informed the court that the Federal Constitutional Court had taken over the case from the SC a day earlier.

“The Federal Constitutional Court took the case from the SC yesterday,” Rana Asad told the bench, adding that an order to that effect had also been issued.

Justice Shahid Waheed directed the additional attorney general to read out the Federal Constitutional Court’s order.

After the order was read in court, Justice Waheed asked whether the attorney general was present in his office.

“Yes, the attorney general is present,” the additional attorney general replied.

“Then call the attorney general,” Justice Waheed directed.

The SC subsequently summoned the attorney general again, and the judges then left the courtroom, and the hearing was adjourned for a second time.

FCC to step in

The Federal Constitutional Court’s decision to seek the record of Khan’s hospital-transfer case from the SC raised a jurisdictional question ahead of the apex court’s hearing of a contempt petition over the alleged non-implementation of its August 18 order.

The FCC’s three-member bench, headed by Chief Justice Aminuddin Khan, issued the order while hearing petitions by three Adiala jail prisoners who are seeking permission to receive treatment at private hospitals. The court directed its registrar to obtain Khan’s case record, as well as records of similar matters pending before the Supreme Court and high courts.

The move followed arguments by Attorney General Mansoor Usman Awan that the FCC has the power under Article 175E(5) of the Constitution to call for the record of a case pending before any court if it involves a substantial question of law concerning constitutional interpretation.

Justice Ali Baqar Najafi questioned whether the government had raised the jurisdictional objection before the Supreme Court. Awan said an additional attorney general had raised the objection but the Supreme Court issued its August 18 order without giving the government notice. Justice Najafi also questioned whether the Supreme Court should have first determined the maintainability of the petition.

Justice Aamer Farooq noted that the matter before the Supreme Court was criminal in nature and that its August 18 order was interim. Justice Najafi said the central issue was whether cases involving constitutional interpretation and fundamental rights now fall within the FCC’s jurisdiction.

The Supreme Court had ordered on August 18 that Khan be shifted from Adiala jail to Shifa International Hospital for medical examination and treatment, with his sister, Dr Uzma Khan, and physician Dr Faisal Sultan present. Khan was instead taken to PIMS for examination before being returned to Adiala.

Dr Uzma later filed a contempt petition, alleging that the government had failed to implement the Supreme Court’s directive. The Supreme Court is scheduled to hear the petition on Sept 16 (today).

The FCC’s intervention has wider implications following the 27th Constitutional Amendment, which established the court and altered the distribution of constitutional jurisdiction. In previous judgments, the FCC has held that its decisions are binding on all courts, including the Supreme Court, while the binding effect of Supreme Court judgments under Article 189 does not extend to the FCC.

The FCC case originated from petitions by three Adiala prisoners who argued that they should also be allowed access to private hospitals. The Islamabad High Court had rejected their pleas, holding that prisoners do not have a legal or fundamental right to treatment at a private hospital of their choice, although transfer to a private facility could be permitted if recommended by a medical board and the required treatment was unavailable at a government hospital.