The Federal Constitutional Court (FCC) has decided to lay down a principle on the question of whether its lower court can appeal a judgment handed down by a larger court in the Supreme Court and sought arguments from all sides. A five-member larger bench of the newly constituted FCC, headed by Justice Aamer Farooq, on Tuesday expressed this decision while hearing an appeal filed against the Practice and Procedure (Amendment) Ordinance by PTI Chairman Barrister Gohar Ali Khan. During the proceedings, lawyer Sameer Khosa – who represented the PTI chairman and general secretary – claimed that the SC’s 7-member bench had given the first decision in the case. Since the FCC has adopted the Supreme Court rules, a five-member bench cannot hear the appeal under those rules, he said. Justice Farooq noted that a bench larger than the seven-member bench would technically be required to overturn such a decision. The Additional Attorney General argued that under Article 189, the decisions of the FCC are subject to the Supreme Court. "Since it is a separate court, the number of judges on the bench – regardless of whether it is more or less – makes no difference. It is up to the FCC to decide how many judges will hear an appeal," he claimed. Khosa maintained that the current appeal is filed under the Practice and Procedure Act and therefore only a higher body can hear an appeal against a decision made under that Act. Justice Farooq observed that issuing orders does not seem problematic. The court then issued a notice to the government to appeal the Practice and Procedure Regulation. Sameer Khosa also objected to the FCC itself, saying that questions exist regarding the court’s independence and, in his opinion, about its very status. He stated that he had informed his clients of his opinion and that it now remains to be seen whether they still wish to retain him as a lawyer. Justice Aamer Farooq observed that it is his legal right to raise such an objection. The FCC will now formulate a principle on whether a smaller court in the Constitutional Court can appeal a decision from the Supreme Court’s larger court. The FCC was created as a court in addition to the Supreme Court through the 27th Amendment to the Constitution, which was bulldozed through Parliament on November 12. Two SC judges – Justice Syed Mansoor Ali Shah and Justice Athar Minallah – resigned in protest against the amendment.
The FCC sets rules for handling SC appeals
