- Application says case does not fall under Articles 175E, 175F.
- Petition questions validity of 27th Amendment framework.
- Bench argues FCC can’t rule on constitutionality of its own creation.
ISLAMABAD: Five sitting judges of the Islamabad High Court (IHC) have filed a petition challenging the hearing of their intra-court appeal (ICA) scheduled before the newly formed Federal Constitutional Court (FCC) next week, The News reported on Sunday.
Justice Mohsin Akhtar Kiyani, Justice Tariq Mehmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan and Justice Saman Riffat Imtiaz filed an application before the FCC, challenging its hearing of their ICAs.
The FCC will take up ICA on November 24 (Monday) against the Supreme Court’s verdict upholding the legality of their transfer to the IHC.
A six-member larger bench, headed by Chief Justice Aminuddin Khan, will hear the case, comprising Justice Syed Hassan Azhar Rizvi, Justice K K Agha, Justice Aamer Farooq, Justice Ali Baqir Najafi, Justice Rozi Khan Barrech and Justice Arsahd Hussain Shah.
The five sitting IHC judges, while challenging the hearing of their ICA, contended that the titled appeal does not fall within Articles 175E or 175F, and consequently could not have been transferred to the FCC. They prayed the FCC that the ICA may be returned to the Supreme Court for determination.
“Without prejudice to aforesaid objections on the constitutionality of the 27th Amendment, the titled appeal could not have been transferred to the Federal Constitutional Court under Articles 175E or 175F of the Constitution,” the five judges submitted. They contended that the titled appeal was filed under Section 5 of the Supreme Court (Practice and Procedure) Act, 2023 (Act) before the Supreme Court.
Therefore, they contended that the 27th Amendment neither amended the Act nor dealt with statutory appeals filed under the Act, adding that Article 175F(2) provides that those appeals that “fall under this Article” shall stand transferred to the FCC.
The titled appeal was not filed under Articles 175E or 175F of the Constitution and consequently, the transfer of the said appeal, filed pursuant to Section 5 of the Act, to the FCC is without any legal force, they submitted. They further submitted that the appeal was filed before the Supreme Cour,t but it is now, however, listed for hearing before the FCC on November 24.
“It appears the subject appeal has been transferred to the latter court on account of the purported amendment to the Constitution through the Constitution (27th Amendment) Act 2025 whereby Article 175F(2) has been introduced, reading as follows:
“All petitions for leave to appeal, appeals or review applications, to which clause (1) apply or any other proceedings falling within the jurisdiction of the Federal Constitutional Court, filed or pending before the Supreme Court prior to commencement of the Constitution (Twenty-seventh Amendment) Act, 2025, stand transferred to Federal Constitutional Court and shall only be heard and decided by that Court.”
The five IHC judges, however, prayed that the said appeal be returned to the original forum — the Supreme Court — as the said transfer and the 27th Amendment itself are without lawful authority.
They further submitted that it is a well-settled proposition of law that a forum that is the creation of a legislative instrument cannot decide upon the constitutional vires of the legislative instrument that created it. They contended that the FCC is the creation of the 27th Amendment, so it cannot decide its own constitutional legitimacy.
The IHC judges recalled that in Sabir Shah, Justice Ajmal Mian, for instance, referring to Mr Fazlul Quader Chowdhry, expounded that “[the Special Tribunal so created cannot decide that the provision under which it has been created is ultra vires the Constitution or that its appointment/ constitution is defective or invalid.
“Even logic dictates that the Federal Constitutional Court can only affirm its own constitutionality, because it owes its very existence to the provisions of the 27th Amendment, which is under challenge,” the five judges contended.
They submitted that the FCC judges, if asked to adjudicate upon the provisions of the 27th Amendment, would be put in an awkward and unenviable position, where they themselves would need to decide whether they continue to hold offices as judges of the FCC, the constitutional court that purportedly binds all, and is bound by none.
