ISLAMABAD:
In a development that has reignited the debate on the evolving constitutional architecture of Pakistan, the Supreme Court (SC) has held in its latest ruling that it is not subordinate to the Federal Constitutional Court (FCC), despite the latter’s consistent position that constitutional adjudication now rests exclusively with it following 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 high courts with distinct jurisdictions, rather than a hierarchical structure that places one on top of the other, a position that stands in stark contrast to multiple FCC rulings that assert binding authority over all courts, including the SC.
The amended Article 189(1) of the Constitution provides that any decision of the Federal Constitutional Court, to the extent that it decides a question of law or enunciates a principle of law, shall be binding on all other courts in Pakistan, including the Supreme Court.
However, CJP Afridi, in his recent judgment, held that the text of Article 189(1) must be deliberately read in conjunction with the general post-Twenty-Seventh Amendment framework, which intentionally organizes jurisdiction between the Supreme Court and the Federal Constitutional Court in different spheres.
He further stated that this agreement assigns each court exclusive jurisdiction over different categories of proceedings, rather than establishing a vertical hierarchy.
“In this context, Article 189(1), while acting to ensure consistency in the exposition of legal principles, does not displace the independent jurisdiction of any of the courts to finally properly determine the matters before it.”
“As constitutionally provided, the application and scope of Article 189(1) is limited to questions of law, as reflected in the ratio decidendi, and does not extend to the result reached in any particular case by the Federal Constitutional Court. The avenues of appeal to the Supreme Court and the Federal Constitutional Court are ultimately constitutionally distinct and operate independently, with respect to the results of individual cases.”
The constitutional scheme does not position either of the two high courts as a forum of appeal against each other; rather, it treats both as coordinated courts exercising clearly demarcated jurisdictions over different classes of matters.
Any broader interpretation of article 189(1) would have the effect of subordinating one higher court to the other with respect to the procedures constitutionally assigned to its jurisdiction; a result that is not justified in the constitutional text,” says CJP Afridi in his 13-page judgment while resolving two issues that arose after the 27th Constitutional Amendment.
The SC division bench, headed by CJP Yahya Afridi, heard the matter in which a writ petition, civil revision and contempt petition were rejected.
The court held that in view of the constitutional framework introduced by Article 175F, the matters of civil review and contempt would be heard by the SC itself, while the writ petition would be transferred to the FCC for decision.
Since then, the ruling has sparked extensive legal debate.
A senior legal official believes that SC and FCC have different jurisdiction, but the FCC has the power to withdraw any case. So in general it is superior to the SC,” he adds.
Former additional attorney general Waqar Rana says the constitution, as amended by the 27th Amendment, places the Supreme Court subordinate to the FCC in constitutional matters, while in other areas it remains the final court.
“Having allowed Parliament to change the salient features of the 1973 constitution without any objection, the SC lost its jurisdiction before the FCC. It could not regain it unless it declares the amendment unconstitutional,” it further states.
Waqar Rana believes the opportunity was lost when CJP Afridi failed to form a full bench to hear the 26th Amendment challenge.
Lawyer Umer Gilani claims that the judgment reflects an attempt by the Chief Justice to ensure an equal position for the Supreme Court, but maintains 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 expressed with childlike simplicity – Humpty took a great fall, and no amount of interpretive sleight of hand can put him back together,” says Gilani.
In several rulings, the FCC has held that its decisions are binding on all courts, including the Supreme Court, and has clarified that the SC no longer retains the authority 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 stipulates that any decision rendered by the SC is binding on all other courts in Pakistan except the FCC.
This exception, the FCC held, arises from the 27th Amendment, which states that its decisions are binding on all courts, including the SC itself.
Similarly, Justice KK Agha held in a separate decision that while Supreme Court rulings are not binding on the FCC, they can be considered persuasive or treated as obiter dicta.
FCC Judge Aamer Farooq also observed that while SC decisions are binding on subordinate courts, FCC decisions are binding on all courts in the country, including both the SC and the high courts.
Recently, the FCC further clarified that the SC’s authority to strike down legislation on constitutional grounds no longer belongs to it under the current framework.
In another ruling, the FCC reiterated that Section 189 must now be interpreted in light of the revised constitutional architecture.
The FCC further clarified that the binding force of precedent derives not from institutional seniority but from constitutional hierarchy.
