FCC puts CJ in charge of bench formation

Under the newly notified rules, notwithstanding anything contained in any other law, every cause, matter or appeal, including an appeal arising out of a judgment passed by a division bench of a high court, shall be heard and disposed of by a bench consisting of not less than two judges, to be nominated by the chief justice.

"If the Judges hearing any cause, petition or appeal are equally divided in opinion, the matter shall, at the discretion of the Chief Justice, be placed for hearing and disposal either before another Judge in Chamber or before a larger Bench to be nominated by the Chief Justice.

"The rules further state that the chief justice may, at any stage, if deemed appropriate, constitute a larger bench to hear any cause, petition, or appeal, having regard to the importance, complexity, or public significance of the questions involved. The rules also provide that a larger bench shall comprise as many judges as the chief justice may determine by order.

Taken together, the provisions make clear that the 'master of roster' system has been retained in the FCC, leaving the chief justice with discretionary powers over the constitution of benches. Since the restoration of the judiciary in March 2009, Supreme Court chief justices have faced considerable criticism over the formation of what were described as 'like-minded' benches.

During former chief justice Umar Ata Bandial's tenure, the PDM government led by Prime Minister Shehbaz Sharif enacted the Supreme Court Practice and Procedure Act 2023, under which a three-member committee headed by the chief justice was tasked with constituting benches.

A full court headed by former chief justice Qazi Faez Isa subsequently upheld the SC Practice and Procedure Act 2023. A majority of judges, including incumbent FCC Chief Justice Aminuddin Khan and Justice Hasan Azhar Rizvi, had strongly supported the three-judge committee for constituting benches.

Even following the 26th Constitutional Amendment, the three-judge committee was retained for the formation of constitutional benches. The committee remains in place in the Supreme Court.

Following the 27th Constitutional Amendment, jurisdiction relating to the enforcement of fundamental rights and the interpretation of laws and the Constitution was assigned to the newly established FCC.Lawyers therefore argue that, with these significant responsibilities now vested in the FCC, there is a need for checks on the chief justice's discretionary powers in order to ensure greater transparency within the institution.

"Once you have torn the heart out of an independent court; the replacement you prop up must function with precision and efficiency. It must be a disciplined unit, akin to a military camp. Any democracy within can only lead to weakness," says lawyer Abdul Moiz Jaferii.

Jaferii believes that the chief must have complete control. And so we are back again to the master of the roster. Unacceptable when the chief was heading an independent court.

Completely necessary when you have the FCC", he adds. FCC judges are already facing what some lawyers call a "battle of perception", particularly because they were appointed by the federal government, which is expected to be the primary litigant before the court in several politically sensitive matters.

It has also been witnessed that the FCC has entertained some important cases against PTI.For instance, it has sought the record of the case related to Imran Khan's health from the Supreme Court. The FCC also issued notices to respondents on a petition against the de-seating of Khyber Pakhtunkhwa Chief Minister Sohail Afridi.

The court has also sought a reply from the K-P chief minister over his statement regarding the formation of the Imran Khan 'Rahae Force'. Likewise, the FCC restrained the Anti-Terrorism Court (ATC) Peshawar from entertaining a K-P government petition seeking withdrawal of cases against PTI leaders, including K-P CM Afridi.

Interestingly, the government has allocated Rs6.048 billion for the FCC in the 2026-27 budget. Despite the passage of ten months, seven judicial seats in the FCC are still vacant. More than 23,000 cases are pending in the country's apex court.