Daily Times

Notwithstanding the removal provisions outlined in other constitutional provisions, the high court’s frequently asserted its judicial authority to consider a particular case under Article 199 of the Constitution. Although our country’s superior courts have given numerous interpretations to the word “judicial power,” it is impossible for it to exist apart from jurisdiction. Article 199, which begins, “Subject to the constitution,” states that the term “judicial power” is subject to the existence of jurisdiction. As such, it must be construed in conjunction with other constitutional provisions that limit the high court’s jurisdiction.

The legal language defines “jurisdiction” as the authority granted to the Courts by statute and the Constitution to decide disputes between parties. Every court has defined and created jurisdiction in order to uphold and enact laws. Judgments and orders become void and null and voidable if they cross or exceed the boundaries of their jurisdiction and authority. Some Courts and Tribunals are granted exclusive jurisdiction to handle certain types of litigation, allowing them to consider cases that other Courts are unable to consider due to the strictures or limitations of exclusive jurisdiction. These cases are then handled and decided by these courts and tribunals.

According to the doctrine of exhaustion of remedies, a party may not file a claim in a different court or jurisdiction until all available legal remedies have been exhausted. This theory emphasizes the fundamental tenet that the party suing should not be incentivized to avoid or circumvent the provisions incorporated into the applicable statute. It is not possible to reduce the High Court’s extraordinary power under Article 199 of the Constitution to its ordinary jurisdiction. It is a well-established statement of the law that contested factual disputes are not admissible and cannot be decided in the writ jurisdiction. The phrase “adequate remedy” refers to a quick, convenient, cost-effective, and efficient remedy.

Compared to the Supreme Court, which has exclusive jurisdiction under Article 184(3) of the Constitution, the high courts do not have any suo motu jurisdiction under Article 199 of the Constitution.

Nonetheless, the High Court’s jurisdiction is subject to specific limitations as stipulated in Article 199(3) of the Constitution. A cursory reading of the aforementioned provision would imply that, in the first instance, a High Court exercising its jurisdiction under Article 199(3) of the “Constitution” is precluded from making any orders regarding any individual who is currently subject to any law pertaining to the Armed Forces, with respect to any action taken under said law. One law that applies to the Pakistani Armed Forces is the Pakistan Army Act, 1952. In several rulings, the Supreme Court has ruled that matters pertaining to members of the armed forces are barred by Article 199(3) of the Constitution and that Article 8(3) of the “Constitution” shall not apply to any law pertaining to members of the armed forces. These rulings include “Ex-Lt Col Anwar Aziz vs Federation of Pakistan through Secretary, Ministry of Defence, Rawalpindi and 2 others” (PLD 2001 SC 549), “Mrs Shahida Zahir Abbasi and 4 others versus President Of Pakistan and others” (PLD 1996 SC 632) and “Muhammad Mushtaq versus Federation Of Pakistan etc.” (1994 SCMR 2286). Asif Mahmood versus Federation Of Pakistan and others” (PLD 2005 Lahore 721). The Hon’ble Supreme Court of Pakistan in the case of “Said Zaman Khan and others Versus Federation Of Pakistan through Secretary Ministry of Defence and others” (2017 SCMR 1249), while outlining the scope of Article 199(3) held that in the proceedings culminating in the impugned Judgments/Orders, the jurisdiction of the learned High Courts under Article 199 of the Constitution, had been invoked. The said Article contains a non obstantive provision ie sub-Article (3) thereof, which reads that r: “(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.” Additionally, in CP No 4794 of 2018 dated April 6, 2020, the Honourable Supreme Court of Pakistan observed: “First of all, we have noted that the very Writ Petition No 1494/2017 filled by Respondent No 1 (the respondent) before the High Court was barred under Clauses (3) and (5) of Article 199 of the Constitution for that the Respondent was a Colonel in the Pakistan Army and matters relating to Armed Forces of Pakistan are specifically excluded from being agitated before the High Court.”

Furthermore, under no legal or equitable principle – humanitarian or otherwise-may a high court take over or otherwise undermine the authority and jurisdiction vested in service tribunals, which are recognized as constitutional courts. High courts have no jurisdiction whatsoever over matters pertaining to the terms and conditions of service of civil servants, and this principle has been decided by various times by Supreme Court.

Further, compared to the Supreme Court, which has exclusive jurisdiction under Article 184(3) of the Constitution, which is not transferable, interchangeable, or transposable to the High Court while exercising jurisdiction under the sphere and dominion of Article 199, the High Court’s do not have any suo motu jurisdiction under Article 199 of the Constitution. The High Court Bar Association v. Government of Baluchistan (PLD 2013 Baluchistan 75), a case heard in Suo Moto jurisdiction by the High Court, was decided to be per-incuriam by the Supreme Court in the case reported as Dr Imran Khattak v Ms Sofia Waqar Khattak (2014 SCMR 122). The Court found that such jurisdiction has not been granted under Article 199 of the Constitution. As in the cases of Muhammad Ilyas v Chief Executive Officer, Multan Electric Power Company Limited, Khanewal Road, Multan vs. Mian Irfan Bashir vs The Deputy Commissioner (DC), Lahore reported as (PLD 2021 SC 775) and Chief Executive Officer, Multan Electric Power Company Limited, Khanewal Road, Multan vs Ilyas, reported as (2021 SCMR 775), the Supreme Court has been pleased to denounce the trend of judicial overreach.

Thus it well-established legal principle states that no court including the High Court has the authority to decide a lawsuit that is outside of its jurisdictional boundaries, and that a lack of jurisdiction transfers an action outside of the jurisdiction designated for a specific court or tribunal and cannot be resolved even with the parties’ cooperation or consent. Therefore, when questions are made about jurisdiction, the Court’s primary obligation is to decide the matter first. In such cases, the Court should make every effort to address the jurisdictional dispute as early in the proceedings as possible. This inherent early evaluation mechanism is justified by the desire to end a case that has run its course and put it to rest. Using a similar approach, the Court must resolve any doubts regarding jurisdiction before moving forward with a full trial.

The writer is a practicing lawyer at Supreme Court and has served as Chairman, Federal Excise & Sales Tax Appellate Tribunal and Senior Advisor Federal Ombudsman. He can be reached: hafizahsaan47@gmail.com