ISLAMABAD:
In a development that has revived the debate on Pakistan’s evolving constitutional architecture, the Supreme Court (SC) in its latest judgment has ruled that it is not subject to the Federal Constitutional Court (FCC), despite the latter’s consistent position that constitutional adjudication now rests exclusively with it after 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 separate jurisdictions, rather than a hierarchical structure that places one above the other, a position that stands in stark contrast to several FCC rulings asserting all courts including binding authority over the SC.
Amended article 189, subsection 1, of the Constitution states that any decision of the Federal Constitutional Court, in so far as it decides a question of law or enunciates a principle of law, shall be binding on all other courts of Pakistan, including the Supreme Court.
However, CJP Afridi in his recent judgment held that the text of Article 189(1) 1, deliberately must be read in the context of the overall framework of the Twenty-seventh Amendment, which intentionally arranges jurisdiction between the Supreme Court and the Federal Constitutional Court across different domains.
He further stated that this arrangement confers exclusive jurisdiction on each court over different categories of proceedings, rather than establishing a vertical hierarchy.
“In this context, Article 189(1), while working to ensure coherence in the statement of legal principles, does not supersede the independent jurisdiction of any court to finally decide cases properly brought before it.”
“As a constitutional mandate, the application and scope of Article 189(1) is limited to questions of law as reflected in the ratio decidendi, and does not include the result reached by the Federal Constitutional Court in any particular case. The avenues of appeal to the Supreme Court and the Federal Constitutional Court are ultimately constitutionally distinct as to individual cases and operate in those individual cases.”
The constitutional scheme does not place either of the two Supreme Courts as an appellate forum for each other; rather, it treats both as coordinated courts exercising clearly delineated jurisdictions over different categories of cases.
Any broader interpretation of Article 189, par. 1, would have the effect of subordinating one Supreme Court to the other in respect of matters constitutionally reserved to fall within its jurisdiction; a result for which there is no justification 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, headed by CJP Yahya Afridi, heard the case in which a writ petition, civil revision and contempt petition were filed.
The court held that in view of the constitutional framework introduced by Article 175F, civil revision and contempt cases would be heard by the SC itself, while the writ would be transferred to the FCC for adjudication.
The judgment has since triggered a wide legal debate.
A senior lawyer believes that the SC and the FCC have different jurisdictions, but the FCC has the power to withdraw any case to itself. So overall 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 areas it remains the final court.
“Having allowed Parliament to amend the salient features of the 1973 Constitution without any reluctance, the SC lost its jurisdiction to the FCC. It could not get it back unless it declares the amendment unconstitutional,” he further says.
Waqar Rana believes the opportunity was lost when CJP Afridi failed to constitute a full bench to hear the challenge to the 26th Amendment.
Lawyer Umer Gilani states that the judgment reflects an attempt by the Chief Justice to ensure equality in the Supreme Court, but argues that this interpretation is untenable.
“Both the text and the context of the 27th Amendment make it obvious that the Supreme Court of Pakistan is the FCC. The Supreme Court is now one of the subordinate courts. If I were to put it simply – and some truths can only be stated with childish simplicity – Humpty had a big fall, and no interpretive dirt, Gilani can put it further back together,” says Gilani.
In several rulings, the FCC has held that its rulings are binding on all courts, including the Supreme Court, and has clarified that the SC no longer retains the power to interpret the Constitution and the law after the 27th Amendment.
In the Riaz Hussain case, FCC judge Rozi Khan Barrech emphasized that Article 189 provides that any decision of the SC is binding on all other courts in Pakistan – except the FCC.
This exception, the FCC ruled, derives from the 27th Amendment, which states that its decisions are binding on all courts, including the SC itself.
Similarly, in a separate ruling, Justice KK Agha held that while SC judgments are not binding on the FCC, they can be considered persuasive or treated as obiter dicta.
FCC judge Aamer Farooq also noted that while SC decisions bind subordinate courts, FCC decisions bind all courts in the country, including both the SC and the Supreme Court.
Recently, the FCC further clarified that the SC’s power to strike down legislation on constitutional grounds no longer rests with it under the current framework.
In another decision, the FCC reiterated that Article 189 must now be interpreted in light of the changed constitutional architecture.
The FCC further clarified that the binding force of precedent derives not from institutional seniority, but from constitutional hierarchy.
