Police officers walk past the Supreme Court of Pakistan building in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
Since its establishment, the Federal Constitutional Court (FCC) has consistently asserted its judicial supremacy over the Supreme Court of Pakistan.
On Tuesday, FCC judge Hasan Azhar Rizvi, while hearing a case, expressed displeasure with a lawyer for not prioritizing the FCC and instead chose to appear before the SC.
Justice Rizvi made it clear that the FCC is the highest court of the land. He also warned that if a lawyer fails to appear before the FCC, the case could be dismissed.
Several attorneys confirmed that a practical problem arises when their cases are decided before both the FCC and the Supreme Court simultaneously. They believe that the Chief Justice of Pakistan Yahya Afridi should intervene and resolve the matter.
In several rulings, the FCC has held that its decisions are binding on all courts, including the Supreme Court. It has also clarified that the SC no longer has the authority to interpret the constitution and the law after the 27th constitutional amendment.
In the Riaz Hussain case, FCC Judge Rozi Khan Barrech emphasized that Article 189 of the Constitution provides that any decision of the SC resolving a question of law or stating a principle of law is binding on all other courts in Pakistan – except the FCC.
This exemption derives from the 27th Amendment of the Constitution, which states that decisions made by the FCC are binding on all courts in Pakistan, including the SC itself. Therefore, all courts in Pakistan are constitutionally bound to comply with FCC judgments.
Similarly, another FCC judge, Justice KK Agha, held in a separate decision that although the SC authorities under Article 189 are not binding on the FCC, the court may consider them to have persuasive value or to constitute obiter dicta, which it may or may not choose to follow.
FCC Judge Aamer Farooq also noted that Article 189 states that decisions of the SC are binding on all courts subordinate to it, including the High Courts. At the same time, the FCC’s decisions are binding on all courts in the country, including both the SC and the high courts.
Recently, the FCC clarified that the SC’s power to strike down legislation on constitutional grounds no longer rests with it under the current constitutional framework.
“The Constitution (27th Amendment) Act, 2025 has restructured the constitutional distribution of judicial power. As a consequence, SC jurisdiction has been correspondingly curtailed in this regard and the power to strike down legislation on constitutional grounds no longer vests in it under the present constitutional arrangement,” a Faroo judgment stated.
Commenting on the current situation between the two highest courts, lawyer Abdul Moiz Jaferii said the FCC is correct.
“The SC is sovereign in name only after the 27th amendment. The fact that the FCC started functioning without adequate infrastructure or administrative support may have slowed down the full assertion of its jurisdiction, which ideally should have been complete by now,” he added.
Islamabad-based lawyer Waqas Ahmad, however, said that if the FCC insists that the SC honor precedent in letter and spirit, it must also respect the judgments of its own predecessor, the former Supreme Court of Pakistan.
“The FCC is not a court born on a tabula rasa; it arose from the division of the former Supreme Court through the 27th Amendment to the Constitution. As an institutional successor, it cannot selectively invoke stare decisis. Legal continuity requires that it recognize and abide by the binding force of previous decisions on which it is based,” he added.
Lawyer Hafiz Ahsaan Ahmad Khokhar noted that since the establishment of two Supreme Courts, lawyers are facing a sensitive professional responsibility.
“Members of the bar deeply respect both the FCC and the Supreme Court and diligently strive to assist each court while presenting their cases with impartiality, professionalism and constitutional fidelity. Attorneys frequently appear before both forums in similar cases and make every effort to resolve legal issues fully and respectfully without showing favoritism or bias,” he said.
He emphasized that judges from both courts should recognize this professional attitude and avoid remarks or institutional attitudes that suggest lawyers should prioritize one court over the other.
Such observations could create practical difficulties, affect advocacy and promote the perception of competition or hierarchy between the two highest courts, thereby undermining institutional harmony.
Khokhar stated that Articles 175, 176, 184 (as substituted), 185, 186 (as amended), 187, 189 (as amended) and 199 clearly define the jurisdiction and status of both the apex courts.
He urged judges to exercise judicial restraint, respect the professional position of lawyers, avoid negative remarks and focus on speedy trial proceedings.
Institutional harmony, mutual understanding and constitutional discipline are essential to maintain the dignity, stability and integrity of Pakistan’s superior judiciary, he added.
