FCC dismisses review petitions, faults SC bench over settled levy case

The Federal Constitutional Court (FCC) on Wednesday expressed serious reservations about how a Supreme Court bench handled a matter that had already been decided. It said the approach raised concerns about judicial discipline, legal norms and institutional propriety.

A two-member FCC bench of Justice Aminuddin and Justice Ali Baqar Najafi heard dozens of review petitions against a Dec 28, 2021 Supreme Court judgment. That judgment refused leave to appeal in a batch of cases arising from a 2020 Sindh High Court order on the constitutional validity of the Income Support Levy Act, 2013.

According to the reports, the two-judge Supreme Court bench in 2021 held that the levy, introduced through the Finance Act without the legislative procedure the Constitution prescribes, did not become valid law. Daily Times reported that the bench included Justice Qazi Faez Isa, who wrote the judgment and later became Supreme Court chief justice in 2023.

The FCC order recalled that the 2021 ruling concerned whether the levy could validly be enacted as a Money Bill under Article 73(2) of the Constitution. The Supreme Court concluded it was not a Money Bill and required the ordinary legislative procedure involving both Houses of Parliament.

On June 21, 2022, a three-member Supreme Court bench including Justice Munib Akhtar granted leave on substantially similar constitutional questions, despite the 2021 ruling and pending review petitions. The 2022 order indicated that the earlier ruling could be reconsidered.

FCC Chief Justice Aminuddin Khan said: "The course adopted in the subsequent order, authored by Justice Munib 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 ruled that refusal of leave does not always bar consideration of a distinct petition, but a later grant of leave cannot by itself review, modify or displace an earlier determination. It said the later proceedings were inconsistent with judicial discipline requirements insofar as they contemplated reconsidering the 2021 judgment without the appropriate judicial mechanism.

Justice Aminuddin noted that the 2021 judgment had no error apparent on the face of the record or other fundamental defect warranting interference in review jurisdiction. The FCC dismissed the review petitions and ordered that the 2021 judgment remain undisturbed.