ISLAMABAD: The counsel for PTI Chairman Gohar Ali Khan on Tuesday questioned the composition of the Federal Constitution Court’s (FCC) five-judge bench, arguing that it could not review an order earlier issued by a larger bench of the Supreme Court.
In the proper course, a larger bench should hear the matter since the earlier decision was given by a seven-judge SC bench, Advocate Sameer Khosa argued before the FCC bench.
The bench, headed by Justice Aamer Farooq and comprising Justice Ali Baqar Najafi, Justice Muhammad Karim Khan Agha, Justice Rozi Khan Barrech and Justice Arshad Hussain Shah, had taken up an intra-court appeal (ICA) seeking a declaration that the ordinance amending the Supreme Court (Practice and Procedure) Act 2023 was ultra vires the Constitution.
Soon after the promulgation of the ordinance on Sept 20 last year, former chief justice of Pakistan (CJP) Qazi Faez Isa altered the composition of the three-judge committee under the Act by replacing Justice Munib Akhtar with Justice Aminuddin Khan, now chief justice of the FCC.
The committee filed in the Supreme Court under the now-omitted Article 184(3) of the Constitution. One of the petitioners, Gohar Ali Khan, argued that giving the CJP discretion to nominate any judge to the committee effectively ensured a majority aligned with the CJP.
He termed the ordinance a direct attack on judicial independence and an attempt by the executive to influence fixing of cases in the Supreme Court. He also said the ordinance violated Article 89 of the Constitution, adding that its timing, motivation and manner of issuance were questionable.
On Tuesday, after the hearing, Justice Aamer Farooq dictated an order issuing notices to the respondents, mainly the president and law ministry, noting that the petitioner had a right to appeal. He said the objections raised by the counsel would be considered when the main plea was heard.
Justice Farooq added that the issue was likely to recur because the Supreme Court Rules, which the FCC had adopted for the time being, state that an appeal should be heard by a larger bench. “We will interpret the points raised by the counsel since the matter may surface again.”
During the hearing, Justice Ali Baqar Najafi asked whether any express bar exists requiring that only a bench larger than the one that issued an earlier decision may hear an appeal against it.
Asked to assist, Additional Attorney General Chaudhry Aamir Rehman said Article 189 suggests that the FCC is now the superior court and, under Article 175E, all pending SC cases have shifted to the FCC. Therefore, it is for the FCC to determine its procedure and how to fix and hear cases.
He also cited instances where a three-judge SC bench heard appeals against decisions of seven-judge high court benches. But Sameer Khosa argued Section 5 of SC Practice and Procedure Act required a larger bench.
At this, Justice Agha said Section 5 was no longer in the field and the FCC would regulate bench strength.
Justice Farooq observed that a smaller bench could take up a matter and issue notices, but if a decision was to be set aside, a larger bench would be required.
Separately, in a case concerning the appointment of sitting LHC judges as election tribunals under Section 149 of the Elections Act 2017, Sameer Khosa said he had advised his clients, including Salman Akram Raja, to consider engaging other counsel because he had reservations about the FCC’s independence. He sought time for them to decide how to proceed.
Published in Dawn, November 26th, 2025
