A five member bench of the Federal Constitutional Court, led by Justice Aamer Farooq, heard PTI Chairman Gohar Ali Khan’s appeal on Tuesday and stressed the need to establish a principle on whether a smaller bench could lawfully entertain an appeal against a judgment of a larger Supreme Court bench.
PTI counsel Sameer Khosa argued that the original ruling in the case had been issued by a seven member Supreme Court bench, making it impermissible for a five member FCC bench to overturn it under the adopted rules.
Justice Farooq observed during the hearing that
“technically, a bench larger than a seven-member bench would be required to set aside that decision.”
However, Additional Attorney General countered that the FCC operates as a separate and superior court, stating:
“Under Article 189, the FCC’s decisions apply to the Supreme Court. The size of the bench bigger or smaller does not restrict the FCC. It is the FCC’s prerogative to decide how many judges will hear an appeal.”
Khosa further questioned the independence and even the constitutional validity of the FCC itself, saying he had informed his clients about the concerns and would wait for their decision on his representation. Justice Farooq responded that raising such objections was within his legal rights.
The court issued notices to the federal government on the appeal and will now lay down a guiding principle on whether a smaller FCC bench can hear appeals arising from decisions of larger Supreme Court benches.
The ruling is expected to define how both courts will interact in the future, especially after the controversial amendment that placed the FCC above the Supreme Court.