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Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
The Federal Constitutional Court (FCC) has made it clear that the Supreme Court’s authority to strike down legislation on constitutional grounds no longer vests in it under the present constitutional scheme.
“The Constitution (Twenty-Seventh) Amendment Act, 2025 has restructured the constitutional distribution of judicial power. As a consequence, the jurisdiction of the Supreme Court has been correspondingly curtailed in this regard, and the authority to strike down legislation on constitutional grounds no longer vests in it under the present constitutional scheme,” the court says.
The court held that the Khyber-Pakhtunkhwa Sales Tax on Services Act, 2022 is not ultra vires the Constitution. In its nine-page judgement in the case, authored by Justice Aamer Farooq, the court notes that although tax references are not expressly enumerated within “our jurisdiction under the Constitution”, the omission does not divest the FFC of the jurisdiction in the case.
“This is so because Tax Reference No. 18 of 2023 raises substantial question of constitutional interpretation,” the judgment said, adding that the Supreme Court of Pakistan does not exercise any jurisdiction in matters requiring examination of vires of the law.
The FCC held that Article 175E (5) authorises it to call for the record of “any case”, and the invocation of “this provision, by itself, confers jurisdiction upon this Court to adjudicate a matter in which it might otherwise lack express jurisdiction”.
“Viewed conversely, as this Court is the ultimate forum for determining the vires of legislation, it possesses the authority to entertain cases even in the absence of express jurisdiction, provided a substantial question of constitutional interpretation is involved. In the present case, such a question squarely arises in the form of a challenge to the vires of the impugned law.”
The judgment said that a collective and harmonious reading of the constitutional scheme governing both courts establishes that “this court is the sole apex forum competent to adjudicate upon questions of law as to the interpretation of the Constitution, including the vires of legislation”.
“While such jurisdiction may previously have been exercised by the Supreme Court under an earlier constitutional framework, under the present constitutional scheme, this authority vests exclusively in this Court (FCC),” the judgment added.
“Article 175E (5) provides that the Federal Constitutional Court ‘may’ call for the record of a case, thereby vesting a discretionary, but constitutionally structured power in this Court. The discretion is further expanded by the opening words, which permits this Court to act either on its own motion or otherwise, signifying that the jurisdiction may be triggered suo sponte or upon an application made before it.”
However, the judgment continued, this power is not unstructured, for the provision itself circumscribes its exercise by a substantive condition, namely, that the case must involve a “substantial question of law as to the interpretation of the Constitution.
“While we do not delineate exhaustively the contours of when such a question arises, it is self-evident that a challenge to the vires of a law inherently raises a substantial question of constitutional interpretation, as the invalidation of legislation can rest only upon its inconsistency with a constitutional provision or command.”
The judgment said that the provision authorises the court to call for the record of “any case”. Language that is unqualified and admits of no distinction as to the nature, form, or classification of proceedings, thereby extends to cases of every description, including, but not limited to, tax references.
“The breadth of this authority is further reinforced by the expression ‘any court’, from which the record may be called. The Constitution neither defines nor limits this phrase, and it must therefore be read to encompass all courts and tribunals within the judicial hierarchy of this Country, without exception.”
Notably, the judgment added, the provision contains no negative or exclusionary language suggesting that the power so conferred is confined to cases otherwise within the express jurisdiction of this court. The use of the unqualified expression “any case” thus necessarily includes cases in which this court may not otherwise have jurisdiction, provided that the jurisdictional trigger, namely, the involvement of a substantial question of constitutional interpretation, is satisfied.
