FCC expresses 'serious concern' over course adopted by SC bench over already-decided matter

The Federal Constitutional Court (FCC) expressed serious reservations on Wednesday regarding the approach adopted by a bench of the Supreme Court on an issue previously resolved. Chief Justice Aminuddin Khan highlighted concerns about judicial discipline, legal norms, and institutional propriety in the subsequent order penned by Justice Munib Akhtar.

The FCC's two-judge bench, consisting of Justice Aminuddin and Justice Ali Baqar Najafi, had reviewed petitions against a December 28, 2021 Supreme Court judgment, which had denied leave to appeal in a batch of cases arising from the Sindh High Court's 2020 decision on the constitutional validity of the Income Support Levy Act 2013.

The Supreme Court's two-judge bench had upheld the decision, ruling that the Income Support Levy Act, though enacted through the Finance Act 2013, did not qualify as a valid law due to the lack of proper legislative procedure. Despite the 2021 decision, a subsequent three-judge Supreme Court bench, including Justice Akhtar, granted leave to appeal in June 2022, signaling an intention to reconsider the earlier judgment.

FCC Chief Justice Aminuddin criticized the Supreme Court's subsequent conduct, emphasizing the importance of coordinate or subsequent benches respecting earlier judicial determinations and adhering to established principles of judicial precedent and institutional procedure. He noted that refusal of leave does not automatically preclude consideration of a distinct petition, but a subsequent grant of leave does not automatically review, modify, or displace an earlier determination.

The FCC reiterated that adherence to judicial discipline is essential for maintaining certainty, consistency, and the institutional integrity of judicial adjudication. The FCC dismissed the review petitions, affirming that the 2021 Supreme Court judgment, which addressed the constitutional character of the Income Support Levy Act, remains undisturbed.

The principal controversy revolved around whether the levy introduced through the Finance Act 2013 could be validly enacted as a Money Bill within the scope of Article 73(2) of the Constitution. The FCC concluded that, notwithstanding its financial implications, the levy did not meet the constitutional criteria for classification as a Money Bill, and thus required the ordinary legislative procedure involving both Houses of Parliament.