FCC Supreme Court bench concern was expressed in strong terms on Wednesday, as the Federal Constitutional Court regretted the course adopted by a bench of the Supreme Court on a matter it said had already been decided. The court described the approach as something that raises serious concerns regarding judicial discipline, legal norms and institutional propriety.
The observation came from FCC Chief Justice Aminuddin Khan, in an order from a two-judge FCC bench that also included Justice Ali Baqar Najafi. The bench dismissed dozens of review petitions against a December 28, 2021 judgment of the Supreme Court, and ruled that the judgment shall remain undisturbed.
FCC Supreme Court bench concern: the 2021 ruling at the centre
The case concerns the Income Support Levy Act 2013. A two-judge Supreme Court bench had examined whether the levy, introduced through the Finance Act 2013, was validly enacted as a Money Bill. That bench, comprising Justice Aminuddin and Justice Qazi Faez Isa, refused leave to appeal in a batch of petitions arising from a 2020 order of the Sindh High Court.
The 2021 judgment, penned by Justice Isa, held that the Act, having been enacted without observance of the legislative procedure prescribed by the Constitution, did not acquire the status of a valid law. The FCC order recalls that the levy did not fall within the constitutional classification of a Money Bill, and that its enactment was therefore required to undergo the ordinary legislative procedure involving both Houses of Parliament.
That distinction is the heart of the case. Article 73 of the Constitution, which deals with Money Bills, is a limited exception to the ordinary legislative procedure in Article 70. The FCC said that exception cannot be expanded merely by characterising a measure as a levy, or by incorporating it into a Finance Act.
What the later bench did, and why the FCC objected
Despite the 2021 decision, and while review petitions against it were pending, a subsequent three-judge Supreme Court bench, including Justice Munib Akhtar, passed an order on June 21, 2022. That order granted leave on substantially identical constitutional questions, and expressly contemplated reconsideration of the earlier determination.
Justice Aminuddin criticised that course in plain terms. He observed that the course adopted in the subsequent order, authored by Justice Akhtar, raises serious concerns regarding judicial discipline, legal norms and institutional propriety, particularly when the earlier determination remained operative and was already the subject of review proceedings.
The FCC stated the governing principle as a settled one. Coordinate or subsequent benches must accord due regard to earlier judicial determinations, and any departure must conform to the established principles governing judicial precedent and the prescribed institutional procedure. Refusal of leave does not invariably preclude consideration of a distinct petition, the court said, but a later grant of leave cannot, by itself, operate to review, modify or displace an earlier determination.
Judicial independence, the chief justice stressed, must be exercised consistently with judicial discipline, restraint and institutional decorum. The course adopted in the later proceedings, insofar as it contemplated reconsideration of the 2021 judgment without recourse to the appropriate judicial mechanism, was inconsistent with those requirements.
What the dismissal decides, and what it does not
On the review petitions themselves, the FCC found no ground for interference. The 2021 judgment, it noted, does not suffer from any error apparent on the face of the record, or any other fundamental defect warranting interference in review jurisdiction. The constitutional questions raised had been duly examined and determined, and no sufficient legal ground was established for their reconsideration.
The petitions were therefore dismissed, and the 2021 ruling stands. That outcome settles the review proceedings, but the sharper message of the order lies elsewhere. It is a public rebuke, from one apex forum to another, about how courts treat their own earlier decisions.
The Federal Constitutional Court is itself a new institution, formed under the 26th Amendment, and it has already asserted that its rulings on questions of law bind all courts, as Feature Pakistan earlier reported in its ruling on the binding force of FCC decisions. This order extends that institutional confidence into the sensitive area of precedent: a decided matter, the FCC says, cannot simply be reopened by a later bench taking a different view of the same questions.
