Syeda Aamna Hasan is a law graduate and LLM student working as a legal researcher, covering legal developments in Pakistan.
On Wednesday, September 16, Pakistan’s Supreme Court deferred proceedings regarding the medical treatment and the proposed transfer of imprisoned former Prime Minister and founder of Pakistan’s Tehreek-e-Insaf (PTI), Imran Khan, to Shifa International Hospital after a constitutional dispute emerged over respective jurisdictions of the Supreme Court and the newly established Federal Constitutional Court (FCC). A three-member Supreme Court bench comprised of Justice Shahid Waheed, Justice Naeem Akhtar Afghan, and Justice Ishtiaq Ibrahim heard petitions addressing Khan’s medical treatment, access to his family, and implementation of an earlier Supreme Court order directing his transfer to a private hospital.
According to Dawn News, the Supreme Court expressed reservations over the FCC’s direction that the relevant case be requisitioned from Supreme Court and fixed for hearing before the constitutional court. The Supreme Court subsequently deferred the proceedings for three weeks, while seeking guidance on the jurisdictional issues from the Attorney General of Pakistan, Mansoor Usman Awan.
The dispute stems from the Supreme Court’s August 18 interim order, which directed authorities to transfer Khan from Adiala Jail to Shifa International Hospital in Islamabad for medical examination and treatment, and directed the formation of a multidisciplinary medical board to examine and treat him. The interim order was issued without prejudice to the rights and contentions of the parties. Dawn News reported that the Court directed the government to transfer Khan to Shifa International Hospital within two days of the court’s order, submit his complete medical record, and issued instructions regarding Khan’s family meetings and communication with his sons.
The implementation of that order became contentious. Rather than being transferred to Shifa, government officials moved Khan to the state-run Pakistan Institute of Medical Sciences (PIMS) for medical examination, citing security considerations. According to Geo News, doctors from Shifa were involved in Khan’s medical examination at PIMS. Khan’s sister, Dr. Uzma Khan, subsequently filed a contempt petition before the Supreme Court, alleging non-compliance with the August 18 directive.
The Supreme Court heard contempt proceedings on September 16. Dr. Uzma Khan argued that if the authorities found the August 18 order difficult to implement, they should have approached the Court for clarification instead of adopting a different course of action. A report on the contempt petition noted that the Supreme Court had fixed the petition for September 16 after objections raised by the registrar’s office were addressed. The contempt proceedings therefore formed part of the matters before Supreme Court when the jurisdictional dispute with the FCC arose.
The legal situation changed on September 15, when Federal Constitutional Court intervened in related proceedings. The FCC was hearing appeals by three Adiala Jail prisoners: Muhammad Ilyas Khan, Muhammad Isamil Hussain, and Owais Altaf, all of whom sought access to private medical facilities for treatment like that granted to Khan. The Islamabad High Court had dismissed their petitions on August 31, after which the prisoners had approached the FCC. According to Dawn News, the FCC summoned complete records of the cases concerning Khan’s proposed transfer to Shifa that were pending before the Supreme Court and High Court.
The FCC relied on Article 175-E of the Constitution, inserted through the 27th Constitutional Amendment, which empowers it to call for the record of a case and deal with matters involving major questions of constitutional law. In the proceedings concerning the three Adiala prisoners, the FCC sought the records because their claims for similar medical relief arose in the context of the Supreme Court’s August 18 order concerning Khan.
The FCC’s September 15 order created a jurisdictional question because the Supreme Court was already dealing with Khan’s hospital transfer proceedings. The FCC directed its office to requisition the relevant records from the Supreme Court and to fix the matters before it—wording that became the central concern during the September 16 hearing. During the hearing, Justice Shahid Waheed indicated that the court was particularly concerned with the direction to fix the cases before the FCC, questioning whether that step fell within the FCC’s powers under Article 175-E.
Attorney General of Pakistan Mansoor Usman Awan appeared before the Supreme Court on September 16 and explained the government’s constitutional position. The Supreme Court sought his assistance on whether the FCC could requisition records from a matter pending before the Supreme Court and subsequently proceed to hear those cases. The Express Tribune reported that the Attorney General advanced the argument that the jurisdiction of the two superior courts was constitutionally defined, and that two superior courts could not simultaneously exercise jurisdiction over the same matter. The Supreme Court, however, indicated that it would examine whether the FCC’s order was binding upon it.
The dispute extends well beyond Khan’s individual medical treatment, raising a broader constitutional question about the relationship between Pakistan’s Supreme Court and the FCC. The FCC proceedings originated from separate petitions by prisoners seeking medical relief comparable to that granted to Khan.
The Supreme Court also examined whether the remaining portions of its August 18 order were being implemented. The bench asked about Khan’s access to his family and whether he had been permitted to communicate with his children. According to a private media channel report on account of the September 16 hearing, the Court indicated that the August 18 order remained operative. The bench then questioned the government’s position that treatment could not be provided at a private hospital while the Supreme Court’s medical treatment directions remained in force. The government maintained that security considerations influenced the decision to take Khan to PIMS rather than Shifa International Hospital.
Khan’s legal representatives have argued that authorities were required to comply with the Supreme Court’s order or first seek clarification from the Court before taking a different course of action. These competing positions remain part of the ongoing legal proceedings and have not been resolved by the Supreme Court.
The September 16 hearing concluded without a final determination on either the contempt allegations or the jurisdictional dispute between the two courts. Instead, the Supreme Court deferred the proceedings for three weeks to allow the Attorney General to prepare submissions on the constitutional issues. The News reported that the Court said it wanted further assistance from the Attorney General on the proper course of action, and the extent to which the FCC’s order affected proceedings before the Supreme Court.
For now, the August 18 order remains in force, and the question of the FCC’s authority to requisition the Supreme Court’s record and proceed with the related matters remains unresolved.
