ISLAMABAD: The Federal Constitutional Court’s authority to hear intra-court appeals (ICAs) came under scrutiny on Monday when a senior lawyer objected to the court taking up appeals originally filed under the Supreme Court (Practice and Procedure) Act, 2023.
Senior counsel Ibad-ur-Rehman Lodhi argued that allowing the FCC to hear and decide ICAs against Supreme Court orders would create the impression that the newly formed court was functioning as an appellate forum over the SC — a role not envisioned under the 27th Constitutional Amendment.
In response, Chief Justice Aminuddin Khan, heading a six-member FCC bench, adjourned the proceedings to let the counsel move an appropriate application. Mr Lodhi later told Dawn he would file a miscellaneous request within the existing ICA rather than submitting a fresh petition.
The matter arose when the bench — also comprising Justices Syed Hasan Azhar Rizvi, Ali Baqar Najafi, Muhammad Karim Khan Agha, Rozi Khan Barrech, and Arshad Hussain Shah — took up appeals related to the All Public Universities BPS Teachers Association (APUBTA), which had highlighted widespread vacancies in public universities, including key administrative and academic posts.
Arguing for petitioner Dr Akhtar Ali Kalhoro, vice chancellor of NFC Institute of Engineering, Multan, Advocate Lodhi contended the FCC lacked jurisdiction because the appeals had been filed under Section 5 of the SC (Practice and Procedure) Act. He insisted the matter should revert to the Supreme Court, which had previously issued adverse remarks against his client.
However, the chief justice noted that the SC can no longer hear cases filed under Article 184(3) — the provision for fundamental rights matters that was removed by the 27th Amendment. Justice K.K. Agha questioned the counsel: “Where is Article 184(3) in the Constitution as it stands today?”
The counsel responded that when the appeal was initially filed before the Supreme Court, Article 184(3) was still operative, even though the amendment later vested original jurisdiction in the FCC under Article 175(E). He added that the appeals had been filed under Article 185, not Article 175(E), and thus did not qualify for transfer to the FCC.
Justice Najafi remarked that the amendment had expanded the scope of the FCC, effectively bringing such matters within its fold. Mr Lodhi countered that legislators failed to resolve this ambiguity and warned that proceeding with the case would reinforce the perception that the FCC was reviewing Supreme Court decisions — contrary to Article 175(F), which limits its appellate powers to High Court judgements under Article 199.
During the hearing, the bench also struggled with the lack of immediate access to legal reference texts, relying on books provided by counsel, with two judges occasionally sharing a single copy.
