Police officers walk past the Supreme Court of Pakistan building in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
The Federal Constitutional Court (FCC) has ruled that the supremacy of the Constitutional Court now rests with it and all courts, including the Supreme Court, are bound by its rulings.
The FCC has also developed certain principles to depart from past Supreme Court precedent.
“The departure from prior precedent of the Supreme Court can be justified only if this Court (FCC) finds that such precedent is manifestly inconsistent with the text or structure of the Constitution; (ii) undermines or dilutes fundamental rights; (iii) reflects judicial overreach of legislative or executive domains; or (ii) has become incompatible with the democratic norms; (v) any other compelling reason which tends to advance the cause of justice,” read a 16-page judgment penned by Justice Syed Hasan Azhar Rizvi while upholding the Supreme Court order in a child marriage case.
The ruling noted that it is imperative to first clarify the precedential authority and binding force of its prior decisions before the FCC within the framework of the applicable constitutional dispensation.
“The frequent references to the judgments of the Supreme Court of Pakistan in our decisions may otherwise create the erroneous impression that this Court is unreservedly bound by these pronouncements in all circumstances, whereas that is not necessarily the position under the existing constitutional framework,” the judgment said, adding that “Article 189 of the Constitution, which under the Constitution was earlier binding on Pakistan on all courts subject to it, must now be read in the light of the changed constitutional architecture.”
“By the creation of this Court and the conferring upon it of final and binding authority in all matters, especially constitutional matters, the hierarchy of precedents is constitutionally restructured. Accordingly, the binding force contemplated in Article 189 shall be understood as subject to the supreme authority of this Court. Pakistan, is bound by its pronouncements.”
The judgment clarified that the binding force of judicial precedent is not derived from institutional seniority, but from the constitutional hierarchy itself.
“Where the Constitution expressly confers final interpretative authority on a particular court, its pronouncements necessarily take precedence over all others, including those of courts which have previously exercised such jurisdiction. Accordingly, judgments of the Supreme Court of Pakistan delivered prior to the establishment of this Court do not act as binding precedent on this Court.
“They nevertheless continue to have great persuasive value, especially when they are based on sound reasoning, reflect a consistent line of authority, and are in harmony with the text, structure, and underlying values of the Constitution.
“Needless to mention, the doctrine of stare decisis has not been abolished; rather, it has been recalibrated to give primacy to constitutional supremacy.
“Judicial discipline requires that precedent be reconsidered, not ignored and set aside in silence, and that continuity be maintained except where departure becomes a constitutional necessity. Therefore, this Court would ordinarily respect and follow our earlier constitutional jurisprudence developed by the Supreme Court of Pakistan unless it is manifestly consistent with Pakistan’s constitutional text or scheme, or inconsistent with fundamental rights and contemporary constitutional values.
“Any departure from prior Supreme Court precedent would be reasoned, express, and principled. The ultimate touchstone, however, is the Constitution itself, the meaning of which this Court is bound to interpret with finality.”
The judgment noted that belief is a personal matter for the individual. If a person openly professes to believe in or subscribe to a particular faith, no further investigation or evidence is usually required to confirm its authenticity.
“In Islam, no specific rituals are required to be performed by a non-Muslim before he or she is considered to have renounced a previous faith and embraced Islam. What is required is a declaration to this effect and the recitation of the Kalma, along with belief in the Oneness of Allah, the finality of Prophethood, and the Holy Qur’an.
