ISLAMABAD:
In a development that has reignited debate over Pakistan’s evolving constitutional architecture, the Supreme Court (SC) has held in its latest judgment that it is not subordinate to the Federal Constitutional Court (FCC), despite the latter’s consistent position that constitutional adjudication now exclusively vests in it following the 27th Constitutional Amendment.
The ruling, authored by Chief Justice of Pakistan (CJP) Yahya Afridi, interprets the amended constitutional framework as establishing two co-equal apex courts with distinct jurisdictions, rather than a hierarchical structure placing one above the other, a position that contrasts sharply with multiple FCC judgments asserting binding authority over all courts, including the SC.
Amended Article 189(1) of the Constitution states that any decision of the Federal Constitutional Court shall, to the extent that it decides a question of law or enunciates a principle of law, be binding on all other courts in Pakistan, including the Supreme Court.
However, CJP Afridi, in his recent judgment, held that the text of Article 189(1) must deliberately be read in conjunction with the overall post-Twenty-Seventh Amendment framework, which intentionally arranges jurisdiction between the Supreme Court and the Federal Constitutional Court across distinct domains.
He further stated that this arrangement assigns to each court exclusive competence over different categories of proceedings, rather than establishing a vertical hierarchy.
“In this context, Article 189(1), while operating to secure consistency in the exposition of legal principles, does not displace the independent jurisdiction of either court to finally determine matters properly before it.”
“As constitutionally mandated, the application and scope of Article 189(1) are limited to questions of law, as reflected in the ratio decidendi, and do not extend to the outcome reached in any particular case by the Federal Constitutional Court. The appellate routes to the Supreme Court and the Federal Constitutional Court are, ultimately, constitutionally distinct and operate independently, in so far as the outcomes of individual cases are concerned.”
The constitutional scheme does not position either of the two apex courts as an appellate forum to each other; rather, it treats both as coordinate courts exercising clearly demarcated jurisdictions over distinct classes of matters.
Any broader construction of Article 189(1) would have the effect of subordinating one apex Court to the other in respect of proceedings constitutionally assigned to fall under its jurisdiction; a result for which there is no warrant in the constitutional text,” says CJP Afridi in his 13-page judgment while adjudicating two issues that have arisen after the 27th Constitutional Amendment.
The division bench of the SC, led by CJP Yahya Afridi, heard the matter wherein a writ petition, civil revision and contempt application were clubbed.
The court held that, in view of the constitutional framework introduced by Article 175F, the civil revision and contempt matters would be heard by the SC itself, while the writ petition would be transferred to the FCC for adjudication.
The judgment has since triggered a wide-ranging legal debate.
A senior law officer believes that SC and FCC have have different jurisidiction but FCC has power to withdraw any case to itself. So in over all scheme it is superior from SC,” he adds.
Former additional attorney general Waqar Rana states that the constitution, as amended through the 27th Amendment, places the Supreme Court as subordinate to the FCC in constitutional matters, while in other domains it remains the final court.
“After having allowed the parliament to change the salient features of constitution of 1973 without any demur the SC lost its jurisdiction to FCC. It could not get it back unless it declares the amendment unconstitutional” he further states.
Waqar Rana believes that the opportunity was lost when CJP Afridi failed to form a full court to hear the challenge to the 26th Amendment.
Advocate Umer Gilani states that the judgment reflects an attempt by the Chief Justice to secure a co-equal position for the Supreme Court, but argues that this interpretation is untenable.
“Both the text and the context of the 27th Amendment make it obvious that Pakistan’s apex court is the FCC. The Supreme Court is now one of the subordinate courts. If I were to put it simplicity – and some truths can only be uttered with childlike simplicity- Humpty had a great fall, and no interpretative sleight of hand can put it back together again,” Gilani further states.
In several judgments, the FCC has held that its decisions are binding on all courts, including the Supreme Court, and has clarified that the SC no longer retains authority to interpret the Constitution and law following the 27th Amendment.
In the Riaz Hussain case, FCC Justice Rozi Khan Barrech emphasised that Article 189 stipulates that any decision rendered by the SC is binding upon all other courts in Pakistan – except the FCC.
This exception, the FCC held, arises from the 27th Amendment, which establishes that its decisions are binding on all courts, including the SC itself.
Similarly, Justice KK Agha held in a separate decision that while SC judgments are not binding on the FCC, they may be considered persuasive or treated as obiter dicta.
FCC Justice Aamer Farooq also observed that while SC decisions bind subordinate courts, FCC decisions bind every court in the country, including both the SC and high courts.
Recently, the FCC further clarified that the SC’s authority to strike down legislation on constitutional grounds no longer rests with it under the current framework.
In another ruling, the FCC reiterated that Article 189 must now be interpreted in light of the altered constitutional architecture.
The FCC further clarified that the binding force of precedent derives not from institutional seniority but from constitutional hierarchy.
