Parliament has not yet granted the right to appeal the Constitutional Court’s decisions
Police officers walk past the Supreme Court of Pakistan building in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
Contrary to its earlier position, the PML-N-led federal government has not yet enacted any legislation to regulate the discretionary power of the newly created Federal Constitutional Court (FCC) to form benches.
Likewise, no right to appeal FCC decisions has been granted so far.
A former Attorney General (AGP) has pointed out that only the intra-judicial appeals (ICAs) pending before the Supreme Court can be heard, but in future no ICA can be filed against an FCC decision. He referred to Article 175(E)(4) of the Constitution which states that only pending appeals will be heard but provides no mechanism for future ICAs.
Even Ibaad-ur-Rehman Lodhi Advocate raised an objection to the FCC on Monday that the court could not hear ICAs pending in the Supreme Court.
He submitted that these ICAs were filed against judgments passed under Article 184(1). 3, of the constitution. However, this article has been omitted through the 27th constitutional amendment.
The former AGP stated that it is bad draft. However, he disagreed with Lodhi and said that all appeals pending in the SC will be transferred to the FCC for adjudication.
The newly inserted Article 175(E)(4) states that all petitions falling under this Article and appeals or petitions for review against judgments rendered or orders rendered under this Article pending or filed with the SC or its constitutional benches prior to the 27th Constitutional Amendment “immediately stay transferred to the FCC and shall be heard only by the FCC.”
The term “this article” has been used twice in this provision.
Regarding the issue of the non-existence of a right to appeal FCC decisions, an official admitted that there is no such right unless the FCC itself provides for it in the rules or unless it is introduced through an “FCC Practice & Procedure Act”.
There is no clarity on whether the government will implement legislation to provide a right to appeal FCC decisions.
During the tenure of former Chief Justice of Pakistan (CJP) Umar Ata Bandial, ruling political parties – particularly the PML-N – had raised concerns over the CJP’s discretionary power to form benches.
To bring transparency, the PDM-led government introduced the Supreme Court Practice and Procedure Act 2023, under which a committee of three senior judges was empowered to form benches.
The right to appeal the decisions of the Supreme Court on matters of public interest was also granted. The Supreme Court had approved the Supreme Court Practice and Procedure Act 2023 by a majority.
Even the current Chief Justice of the FCC, Justice Amin-ud-Din Khan, was among the judges who had approved the action. He, as master of the guard, now forms the benches of the FCC.
An FCC full court meeting was held on November 17, at which it was unanimously agreed that the Supreme Court Rules, 2025, are adopted for the practice and procedure of the Court, mutatis mutandis, except for Orders XI, XIII, and XXXVII, pending the formulation of the Court’s own rules.
“Every suit, appeal, petition or suit shall be heard and heard by a bench consisting of not less than two Hon’ble Judges to be appointed by the Hon’ble Chief Justice.
“Appeals arising from judgments of a Division Bench shall be heard by a Bench consisting of not less than three Hon’ble Judges of this Court to be nominated by the Hon’ble Chief Justice,” said a notice issued after the FCC meeting.
Some senior lawyers also wonder why there is no proper representation of each province on all FCC benches. Currently, two- and three-member benches hear cases. In some cases judges belonging to the same province sit together on a bench.
It is learned that more than 20,000 cases are likely to be transferred from the Supreme Court to the FCC. The FCC’s chief judge has also approved the creation of more than 200 vacancies for court officials.
IHC is likely to be moved
It is also learned that the Islamabad High Court (IHC) is likely to shift to its old premises located in Sector G-10 of the capital as the FCC is now housed in its building. A majority of lawyers support the relocation of the IHC to the old building because the Islamabad District Courts are located nearby. A senior official has confirmed that the government has decided to move the IHC in the month of January.
However, the current body of the Islamabad High Court Bar Association requests that the switch be postponed until February, the month of the IHCBA elections.
The official stated that the FCC will operate from the new building of the IHC. All eyes are on FCC judges as to the kind of case law they will develop. There is so far no reported judgment on the FCC’s website.
