Parliament has yet to grant the right to appeal against decisions of the Constitutional Court
Police officers walk past Pakistan’s Supreme Court building, in Islamabad, Pakistan, April 6, 2022. REUTERS
ISLAMABAD:
Contrary to its previous position, the PML-N-led federal government is yet to enact any legislation to regulate the discretionary power of the president of the newly created Federal Constitutional Court (FCC) to form courts.
Likewise, no right of appeal against FCC decisions has been provided so far.
A former attorney general (AGP) has indicated that only intrajudicial appeals (ICA) pending before the Supreme Court can be heard, but that in the 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 does not provide any mechanism for future ICAs.
Even advocate Ibaad-ur-Rehman Lodhi on Monday raised an objection before the FCC that the court could not hear the ICAs pending in the Supreme Court.
He stated that said ICAs were filed against sentences issued under Article 184(3) of the Constitution. However, this article has been omitted by the 27th Constitutional Amendment.
The former AGP stated that this is bad writing. However, he disagreed with Lodhi and said that all appeals pending in the SC will be transferred to the FCC for resolution.
The newly inserted Article 175(E)(4) provides that all petitions falling under this Article and appeals or petitions for review against judgments rendered or orders issued pursuant to this Article, pending or filed before the SC or its constitutional courts before the 27th Constitutional Amendment “are immediately transferred to the FCC and shall only be heard and decided by the FCC.”
The phrase “this article” has been used twice in this provision.
On the issue of the lack of a right to appeal against FCC decisions, one government official admitted that there is no such right unless the FCC itself establishes it in the rules or unless it is introduced through some “FCC Procedures and Practices Act.”
There is no clarity on whether the government will implement legislation to provide the right to appeal against FCC decisions.
During the tenure of former Chief Justice of Pakistan (CJP) Umar Ata Bandial, the ruling political parties, especially the PML-N, had expressed concerns over the discretionary power of the CJP to form benches.
To bring transparency, the PDM-led government introduced the Supreme Court Practices and Procedures Act, 2023, under which a committee comprising three senior judges was empowered to form tribunals.
It also provided for the right to appeal against decisions of the Supreme Court in matters of public interest. The Supreme Court, by majority, had upheld the Supreme Court Practice and Procedure Act, 2023.
Even the current FCC Chief Justice, Justice Amin-ud-Din Khan, was among the judges who had supported the law. However, he, as the owner of the squad, now forms benches in the FCC.
A meeting of the full FCC was held on November 17, at which it was unanimously resolved that the 2025 Supreme Court Rules are adopted for the practice and procedure of the court, mutatis mutandis, excluding Orders XI, XIII and XXXVII, until the formulation of the Court Rules themselves.
“Every case, appeal, petition or matter will be heard and resolved by a court composed of not less than two honorable judges, who will be appointed by the honorable president of the Supreme Court.
“Appeals arising from judgments passed by a division bench shall be heard by a bench consisting of not less than three honorable judges of this court, who shall be appointed by the honorable chief justice,” said a notification issued after the FCC meeting.
Some senior lawyers also question why there isn’t adequate representation from each province in all FCC courts. Currently, two- and three-member courts hear cases. In some cases, judges belonging to the same province sit together in one court.
It is known that more than 20,000 cases are likely to be transferred from the Supreme Court to the FCC. The FCC Chief Justice also approved the creation of more than 200 judicial officer vacancies.
IHC likely to be changed
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. Most lawyers support moving the IHC to the old building because the Islamabad district courts are located nearby. A senior government official confirmed that the government decided to change the IHC in the month of January.
However, the current Islamabad High Court Bar Association body is requesting that the change be postponed until February, the month of the IHCBA elections.
The official stated that the FCC will operate from the new IHC building. All eyes are on the FCC judges regarding the type of jurisprudence they will develop. So far there are no reported rulings on the FCC website.
