Police officers walk past the Supreme Court of Pakistan building in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
A fresh constitutional debate is gathering momentum over the Federal Constitutional Court’s (FCC) recent ruling that past Supreme Court decisions are not unconditionally binding on it, calling into question the traditional doctrine of stare decisis.
The ruling has opened a new front in legal discourse, with jurists analyzing its implications for precedent, hierarchy and institutional balance in what increasingly appears to be a dual legal system at the top.
A senior lawyer while talking to The Express Pakinomist opines that the judges’ comity demands that pre-27th Amendment SC judgments remain binding on the FCC unless reviewed by its larger bench.
He said the SC previously functioned as the highest constitutional court exercising jurisdiction under Article 184 of the Constitution and that jurisdiction has now been transferred to the FCC under Article 175E of the Constitution.
However, he agreed that after the 27th amendment, the status of the SC has changed and FCC decisions are binding on the present SC under Article 189 of the Constitution.
According to lawyer Haris Azmat, the FCC’s view that SC precedents are not binding on it reflects a major constitutional shift following the 27th Amendment and amendments to Article 189. “Traditionally, Supreme Court rulings were binding on all courts to ensure consistency in the legal system. The amendment appears to place the Federal Constitutional Court in a non-constitutional interpretation”.
“This is now the law. The Federal Constitutional Court can develop its own jurisprudence without being strictly bound by Supreme Court precedent. While this may strengthen constitutional control, it also raises concerns about conflicting interpretations and legal uncertainty if both courts have divergent views”, notes the lawyer.
Haris Azmat further states that the real test will be how these two institutions exercise their powers and maintain coherence in the legal system going forward. Regarding SC decisions made prior to the 27th Amendment, counsel believes that these are not binding on the FCC under the latest amendment. “That’s the clear text.”
Two tops, one system
A former lawyer says the recent FCC ruling was authored by Justice Hasan Azhar Rizvi.
“I think what he’s saying is that the FCC is not bound by previous SC rulings, just as the SC itself was not bound by its own previous rulings. It could overturn its previous rulings. This was occasionally done by the SC itself. That’s all the FCC’s ruling should be read to mean.”
“It is a fact, however, that after the 27th amendment, the SC cannot overturn any ruling by the FCC. Whether the SC can overturn its own previous rulings involving constitutional issues is questionable, although other than constitutional issues, I think it can still overrule its previous rulings,” he reckons.
“Justice Rizvi said that normally we will follow the judgments of the SC, but if inclined, the FCC can deviate. This is nothing new, but looks strange because of the duality of the two Supreme Courts currently functioning in Pakistan.”
He notes that in the end there will only be one top row left. Which court will ultimately survive is still uncertain, although at this point the FCC appears to have the advantage.
The situation is further complicated by the fact that, rather than functioning as a true FCC, in common with many European constitutional courts, the FCC has evolved into more of a general court of appeals, a role it now shares with the existing SC.
He further wonders why the laws are being amended to replace statutory appeals from the SC to the FCC in elections, NAB and other matters. “What constitutional court in the world hears ordinary statutory appeals that involve no constitutional issue. I believe that these amendments allowing for statutory appeals to the FCC are against the spirit of the 27th Amendment itself and motivated by extraneous considerations.”
‘Supreme in name only?’
Legal expert Abdul Moiz Jaferii says the SC is left supreme only in name after the 27th amendment and that this was the expressed intention of the legislature. “To assume that those in power would have allowed past precedent to bind their handpicked dispensers of justice would negate the need for the amendment itself.”
“This is the new normal. A bunch of judges were elected to the top of the hierarchy because the executive branch liked them. If the Supreme Court thinks otherwise, it’s a simple case of denial. Appeal to the FCC, not the Supreme Court.”
FCC ruling
The FCC has also developed certain principles to depart from previous SC 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 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 altered constitutional architecture,” the judgment read.
“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 vests final interpretative authority in a particular court, its pronouncements necessarily take precedence over all others, including those of courts which have previously exercised such jurisdiction. Consequently, 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.”
