Superior courts should issue directions to high courts for swiftly deciding pending cases sparingly, FCC rules

40

Protecting the Right to Legal Counsel During Bar Strikes

The Federal Constitutional Court (FCC) has struck a major blow against the disciplinary power of legal regulatory bodies, ruling that bar associations and bar councils lack the authority to suspend a lawyer’s license for appearing in court or representing clients during strikes. In a 20-page judgment, a two-member bench led by Justice Aamer Farooq declared that frequent calls for bar strikes are not only illegal but also directly undermine the constitutional right of litigants to access justice. The ruling originated from a high-profile dispute in Khyber Pakhtunkhwa following the killing of a young lawyer. After a station house officer was implicated in the death and subsequently surrendered to the court, he engaged Advocate Shabbir Hussain Gigyani for his defense. This move triggered a resolution by the Khyber Pakhtunkhwa Bar Council to bar any advocate from defending the accused officer. The tension escalated when the Peshawar Bar Association characterized the court appearances of certain lawyers during strikes as acts of indiscipline. According to Pakistan Today, the KP Bar Council suspended the license of Advocate Azim Afridi during an emergency meeting on October 8, 2025. The FCC dismissed an appeal by the Peshawar High Court Bar Association, affirming that the right to be represented by counsel of one’s choice is a fundamental protection. Justice Farooq observed that preventing lawyers from approaching courts directly threatens the economic freedom protected by Article 18 of the Constitution.

Broadening Writ Jurisdiction Beyond Government Entities

In a separate but equally significant constitutional clarification, the FCC has affirmed that the writ jurisdiction of High Courts is not confined to government authorities. The court ruled that under Article 199(1)(c), High Courts can issue directions to “any person,” “institution,” or “regulatory body” to ensure the enforcement of fundamental rights. This interpretation draws on a long constitutional lineage, stretching from the Government of India Act, 1935, through the Constitutions of 1956 and 1962, to the current 1973 framework. As Associated Press of Pakistan reported, the court emphasized that fundamental rights cannot remain merely theoretical; constitutional courts are duty-bound to ensure their effective enforcement against any entity that violates them. The bench highlighted that the phrase “any person” carries a wide legal meaning. This includes:

• Bodies corporate
• Autonomous institutions
• Private individuals
• Other organizations and regulatory bodies

By citing precedents such as the Pakistan Olympic Association case, the court reinforced that a violation of fundamental rights does not need to originate from a state entity to warrant High Court intervention.

Defining the Boundaries of Judicial Independence

The FCC’s recent decisions also address a growing jurisdictional friction between superior courts and the High Courts. The court warned that while the Supreme Court and the FCC are the highest authorities, they must not infringe upon the administrative and judicial autonomy of the five independent High Courts in the country. This warning follows a period of tension regarding how superior courts manage High Court rosters. For instance, a May 12 order by the Supreme Court directed the Islamabad High Court to decide on applications regarding the suspension of sentences for rights activist Imaan Mazari and her husband within two weeks. In response to requests for such expedited decisions, the FCC has cautioned that superior courts should issue directions sparingly. The Express Tribune reported that the FCC views orders that superimpose specific policies or case fixation schemes as an intrusion into judicial independence. The court clarified the hierarchy within the judicial system, noting that while the district judiciary is subordinate to the High Courts under Article 203, the High Courts themselves remain independent constitutional entities.

“The scheme of judicature as provided in the Constitution of the Islamic Republic of Pakistan, 1973, at present, is that there are five independent High Courts in the country created under Part VII, Chapter 3.

While the FCC acknowledged that urgency or controversy may occasionally require a High Court to hear a remanded matter at an early date, it emphasized that such directions should be administrative and recommendatory rather than binding.

“All decisions of the high court are challengeable before the Supreme Court and/or the Federal Constitutional Court, which does not make the referred court subordinate in any manner.

The current rulings establish a more rigid boundary for judicial management, signaling that the independence of the High Courts must be preserved even when superior courts seek to address the urgency of specific cases.