Parliament has not yet provided for a right of appeal against decisions of the Constitutional Court
Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
Contrary to its previous stance, the PML-N-led federal government has yet to implement legislation to regulate the discretion of the chief justice of the newly created Federal Constitutional Court (FCC) to form benches.
Likewise, until now, no right of appeal has been provided against FCC decisions.
A former Attorney General (AGP) emphasized that only intra-judicial appeals (ICAs) pending before the Supreme Court could be heard, but that going forward, no ICAs can be filed against an FCC decision. He referred to Section 175(E)(4) of the Constitution, which states that only pending appeals will be heard, but does not provide any mechanism for future ICAs.
Even Ibaad-ur-Rehman’s lawyer Lodhi on Monday raised an objection before the FCC that the court could not hear the pending ICAs before the Supreme Court.
He said these ICAs were filed against judgments passed under Article 184(3) of the Constitution. However, this article was omitted by the 27th Constitutional Amendment.
The former AGP said the writing was bad. However, he disagreed with Lodhi and said all appeals pending before the SC will be transferred to the FCC for decision.
Newly inserted Section 175(E)(4) provides that all petitions that fall under this section, as well as appeals or requests for review against judgments rendered or orders issued under this section, pending or filed before the SC or its constitutional chambers prior to the 27th Constitutional Amendment “shall be immediately transferred to the FCC and shall be heard and decided only by the FCC.”
The phrase “this article” has been used twice in this provision.
Regarding the question of the non-existence of a right of appeal against FCC decisions, a government official admitted that such a right does not exist unless the FCC itself provides for it in its rules or unless it is introduced by an “FCC Practices and Procedures Act.”
It is unclear whether the government will implement legislation providing a right to appeal FCC decisions.
During the tenure of former Chief Justice of Pakistan (CJP) Umar Ata Bandial, the ruling political parties, particularly the PML-N, had expressed concerns over the discretion of the CJP to form seats.
To bring transparency, the PDM-led government introduced the Supreme Court Practice and Procedure Act, 2023, under which a committee comprising three senior judges was empowered to form benches.
The right to appeal against decisions of the Supreme Court in matters of public interest is also provided. The Supreme Court, by a majority, had approved the Supreme Court Practice and Procedure Act, 2023.
Even the current FCC Chief Justice, Justice Amin-ud-Din Khan, was among the judges who approved the law. However, as master of the roster, he now forms benches within the FCC.
A full meeting of the FCC was held on November 17, at which it was unanimously decided that the 2025 Supreme Court Rules be adopted for the practice and procedure of the court, mutatis mutandis, excluding Orders XI, XIII, and XXXVII, until the Court’s own rules are developed.
“Any cause, appeal, petition or matter shall be heard and determined by a bench consisting of at least two honorable judges, appointed by the honorable chief justice.
“Appeals arising from judgments rendered by a division bench shall be heard by a bench comprising at least three honorable judges of that court, who shall be appointed by the honorable chief justice,” said a notification issued after the FCC meeting.
Some seasoned lawyers also wonder why there is not adequate representation from 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.
We learn that more than 20,000 cases could be transferred from the Supreme Court to the FCC. The FCC chief judge also approved the creation of more than 200 vacancies for court officials.
IHC likely to be moved
It is also learned that the Islamabad High Court (IHC) is likely to move to its old premises located in Sector G-10 of the capital, with the FCC now housed in its building. A majority of lawyers support moving the IHC to the old building as the district courts of Islamabad are located nearby. A senior government official confirmed that the government has decided to move the IHC to January.
However, the current body of the Islamabad High Court Bar Association is demanding that this change be postponed to February, the month of the IHCBA elections.
The official said the FCC would operate out of the new IHC building. All eyes are on the FCC judges regarding what kind of case law they will develop. There are no rulings posted on the FCC website so far.
