FCC to set rule for dealing with SC appeals

The Federal Constitutional Court (FCC) has decided to lay down a principle on the question whether its smaller bench can hear an appeal against a verdict issued by a larger bench of the Supreme Court and sought arguments from all sides.

A five-member larger bench of the newly formed FCC, headed by Justice Aamer Farooq, on Tuesday expressed this resolve while hearing an appeal filed against the Practice and Procedure (Amendment) Ordinance by PTI Chairman Barrister Gohar Ali Khan.

During the proceedings, Advocate Sameer Khosa — representing the PTI chairman and general secretary — argued that SC's seven-member bench had issued the initial 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 observed 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 FCC's decisions apply to the Supreme Court. "As this is a separate court, the number of judges on the bench — whether more or fewer — does not make a difference. It is up to the FCC to decide how many judges will hear an appeal," he contended.

Khosa maintained that the current appeal has been filed under the Practice and Procedure Act, and therefore, only a larger bench can hear an appeal against a decision delivered under that law.

Justice Farooq remarked that issuing notices does not appear problematic. The court then issued notice to the government on the appeal against the Practice and Procedure Ordinance.

Sameer Khosa also objected to the FCC itself, saying that questions exist regarding the court's independence and, in his view, regarding 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 counsel.

Justice Aamer Farooq remarked that raising such an objection is his legal right.

The FCC will now formulate a principle on whether a smaller bench of the Constitutional Court may hear an appeal against a decision of the Supreme Court's larger bench.

The FCC was created as a court over and above the Supreme Court through the 27th Constitutional Amendment 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.