Police officers walk past Pakistan’s Supreme Court building, in Islamabad, Pakistan, April 6, 2022. REUTERS
ISLAMABAD:
The Federal Constitutional Court (FCC) has ruled that it now has the supremacy of constitutional decision and that all courts, including the Supreme Court, are bound by its pronouncements.
The FCC has also developed certain principles to depart from previous Supreme Court precedent.
“Departure from a prior Supreme Court precedent may be justified only when this court (FCC) determines that such precedent is manifestly inconsistent with the text or structure of the Constitution (ii) undermines or dilutes fundamental rights, (iii) reflects judicial overreach in the legislative or executive domains; or (iv) has become inconsistent with evolved constitutional values and democratic norms (v) any other compelling reason tending to advance the cause of justice,” a 16-page ruling written by Justice Syed Hasan Azhar Rizvi read out while confirming the high court’s order in a child marriage case.
The ruling noted that it is imperative to first clarify the precedent authority and binding force of its previous decisions on the FCC within the framework of the prevailing constitutional dispensation.
“Frequent references to the judgments of the Supreme Court of Pakistan in our decisions may otherwise create the erroneous impression that this Court is unrestrictedly bound by such pronouncements in all circumstances, while that is not necessarily the position under the prevailing constitutional framework,” the judgment said, adding that “Article 189 of the Constitution, which earlier gave binding force to the judgments of the Supreme Court of Pakistan on all courts subordinate to it, must now be read in the light of the altered constitutional architecture.”
“Upon the establishment of this Court and the granting of final and binding authority in all matters, particularly in constitutional matters, the hierarchy of precedents stands constitutionally restructured. Accordingly, the binding force contemplated in Article 189 must be understood to operate subject to the supreme authority of this Court. The supremacy of constitutional adjudication now rests with this Court, and all courts, including the Supreme Court of Pakistan, are bound by its pronouncements.”
The ruling clarified that the binding force of judicial precedent does not derive from institutional seniority but from the constitutional hierarchy itself.
“Where the Constitution expressly confers final interpretative authority on a particular court, its pronouncements necessarily prevail over all others, including those of courts previously exercising that jurisdiction. Accordingly, judgments of the Supreme Court of Pakistan delivered before the establishment of this Court do not serve as binding precedents for this Court.
“Nevertheless, they continue to have great persuasive value, particularly 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.
“It goes without saying that the doctrine of stare decisis has not been repealed; rather, it has been recalibrated to give primacy to constitutional supremacy.
“Judicial discipline requires that precedent be reconsidered, not ignored or silently disregarded, and that continuity be preserved except where deviation becomes a constitutional necessity. Therefore, this Court would normally respect and follow our earlier constitutional jurisprudence developed by the Supreme Court of Pakistan, unless it is established that the same is manifestly erroneous, inconsistent with the constitutional text or scheme, or incompatible with contemporary fundamental rights and constitutional values.
“Any departure from prior Supreme Court precedent would be reasoned, express, and principled. However, the ultimate touchstone remains the Constitution itself, the meaning of which this Court is obligated to definitively expound.”
The ruling noted that faith is a personal matter of each individual. If a person openly professes his or her belief in or adherence to a particular faith, no further investigation or testing is usually required to verify its authenticity.
“In Islam, a non-Muslim is not required to perform specific rituals before he 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 Quran.
