SC ruling on Practice, Procedure Ordinance: FCC issues notices in response to Gohar’s plea

ISLAMABAD: The Federal Constitutional Court (FCC) on Tuesday issued notices to federal government in response to an intra-court appeal (ICA) filed by Barrister Gohar Ali Khan, Chairman of Pakistan Tehreek-e-Insaf (PTI), challenging the Supreme Court’s ruling on the Practice and Procedure (Amendment) Ordinance, 2024.

In December 2024, a seven-member Constitutional Bench of the Supreme Court of Pakistan dismissed petitions filed by Barrister Gohar and others, who had challenged the validity of the Practice and Procedure Ordinance.

The court ruled that the ordinance had lapsed following the passage of new legislation by Parliament. Subsequently, the petitioners filed ICA under Section 5 of the Practice and Procedure Act (PPA), 2023, seeking a review of the verdict.

On Tuesday, a five-judge bench of the FCC, led by Justice Aamir Farooq and comprising Justices Ali Baqar Najafi, Muhammad Karim Khan Agha, Rozi Khan Barrech, and Arshad Hussain Shah, heard the ICA, challenging the Supreme Court’s ruling on the Practice and Procedure Ordinance.

Sameer Khosa represented Barrister Gohar in the case, while Salman Akram Raja, who had filed an appeal concerning the appointment of retired judges to election tribunals, also appeared before the bench.

In relation to Salman Akram Raja’s appeal, Sameer Khosa argued that his client lacked confidence in the FCC, which was established under the 27th Amendment, suggesting that it may not function as an independent judicial body.

Khosa requested time for Raja to consider whether he wished to proceed with his case before this court. In light of this, the bench adjourned the matter for three weeks.

In Barrister Gohar’s intra-court appeal, Khosa said that, under Section 5 of the Supreme Court (Practice and Procedure) Act, 2023, the appeal should be heard by a larger bench than the seven-member bench that initially ruled on the matter.

Justice Farooq clarified that while a two-judge bench could hear an appeal against a High Court division bench’s verdict, a larger bench would be needed to overturn a High Court judgment.

“Let notice be issued to the respondents, as I don’t see any bar, and this matter could be settled during those proceedings,” he added.

However, Khosa maintained that the current five-judge bench lacked the authority to even issue a notice in this case, insisting that a properly constituted bench should take cognizance and proceed with the appeal.

Additional Attorney General (AAG) Aamir Rehman argued that the judgment of the Federal Constitutional Court (FCC) is binding on the Supreme Court, asserting that the appeal should not be treated as an ICA.

He emphasised that the number of judges on the bench was irrelevant and that the FCC has the authority to establish its own procedures for hearing cases before the Supreme Court.

Justice KK Agha responded by stating that Section 5 of the Practice and Procedure Act (PPA), 2023, was no longer applicable after the 27th Amendment. “We are no longer bound by the decisions of the Supreme Court, as per the current constitution, and the number of judges does not matter,” he added.

The Additional Attorney General (AAG) reiterated that the appeal is a substantive right, and the FCC is fully empowered to regulate its own procedural framework.

Justice Najafi further noted that the petition filed under Article 184 (3) of the Constitution had been rendered invalid following the 27th Amendment, affirming that the FCC has the authority to hear the case.

Justice Farooq advised the counsel that they could reserve the right to address the issue of the number of judges during the ICA hearing, stating, “This matter will arise in other cases as well, so it should be interpreted by this Court.”

The petitioners – PTI Chairman Gohar, former senator Afrasiab Khattak, and journalist Fareeha Aziz – have challenged the constitutionality of the Supreme Court (Practice and Procedure) Amendment Ordinance, 2024.

They are seeking the striking down of Section 2, which reconstitutes the committee responsible for forming Supreme Court benches, arguing that it violates fundamental rights and is ultra vires the Constitution.

The Supreme Court (Practice and Procedure) Amendment Ordinance, enacted on September 20, 2024, amended the 2023 Act, notably in Section 2 (1). The ordinance established a three-member judicial committee to decide on Supreme Court bench formations and human rights cases.

While the previous committee comprised the Chief Justice and the two senior-most judges, the new ordinance allows the Chief Justice to nominate one additional member, raising concerns about the potential centralisation of judicial power.

Following the promulgation of the ordinance, former Chief Justice Qazi Faez Isa included Justice Amin-ud-Din Khan in the committee, replacing Justice Munib Akhtar, who was third in seniority at the time.

The case has been adjourned sine die.

Copyright Business Recorder, 2025