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Police officers walk past Pakistan’s Supreme Court building, in Islamabad, Pakistan, April 6, 2022. REUTERS
ISLAMABAD:
The Federal Constitutional Court (FCC) has made clear that the Supreme Court’s authority to strike down laws on constitutional grounds no longer belongs to it under the current constitutional system.
“The Constitution (Twenty-Seventh) Amendment Act, 2025 has restructured the constitutional distribution of judicial power. As a result, the jurisdiction of the Supreme Court has been correspondingly restricted in this regard, and the authority to strike down laws on constitutional grounds no longer vests in it under the present constitutional scheme,” the court says.
The court held that the Khyber-Pakhtunkhwa Services Sales Tax Act, 2022 is not ultra vires the Constitution. In its nine-page judgment in the case, written by Justice Aamer Farooq, the court notes that although the tax references are not expressly enumerated within “our jurisdiction under the Constitution”, the omission does not strip the FFC of jurisdiction in the case.
“This is so because Tax Reference No. 18 of 2023 raises a substantial question of constitutional interpretation,” the judgment said, adding that the Supreme Court of Pakistan does not exercise any jurisdiction in matters requiring an examination of the vires of the law.
The FCC held that Section 175E(5) authorizes it to seek registration of “any case,” and invoking “this provision, alone, confers jurisdiction on this Court to resolve a matter over which it might otherwise lack express jurisdiction.”
“Viewed conversely, as this Court is the ultimate forum for determining the vires of legislation, it possesses the authority to hear cases even in the absence of express jurisdiction, provided that a substantial question of constitutional interpretation is involved. In the present case, such question arises directly in the form of a challenge to the vires of the impugned law.”
The judgment said that a collective and harmonious reading of the constitutional scheme governing both courts establishes that “this court is the only supreme forum competent to rule on questions… of law regarding the interpretation of the Constitution, including the vires of legislation.”
“While such jurisdiction may have previously been exercised by the Supreme Court under a previous constitutional framework, under the current constitutional scheme, this authority rests exclusively with this Court (FCC),” the ruling adds.
“Article 175E (5) provides that the Federal Constitutional Court ‘may’ request the dismissal of a case, thus conferring on it a discretionary, but constitutionally structured power. The discretion is further expanded by the initial words, which allow this Court to act either ex officio or otherwise, which means that the jurisdiction can be activated ex officio or upon application submitted to it.”
However, the ruling continues, this power is not unstructured, since the provision itself circumscribes its exercise through a substantive condition, namely, that the case must involve a “substantial question of law regarding the interpretation of the Constitution.”
“While we do not exhaustively delineate the contours of when such a question arises, it is clear that a challenge to the vires of a statute inherently raises a substantial question of constitutional interpretation, since the invalidation of a legislation can only be based on its inconsistency with a constitutional provision or mandate.”
The ruling says that the provision authorizes the court to request the registration of “any case.” Language that is unqualified and admits of no distinction as to the nature, form or classification of proceedings therefore extends to cases of all types, including, but not limited to, tax references.
“The breadth of this authority is further reinforced by the expression ‘any court’, from which the record may be requested. The Constitution does not define or limit this phrase and, therefore, it must be understood to cover all courts and tribunals within the judicial hierarchy of this Country, without exception.”
In particular, the ruling added, the provision does not contain any negative or exclusionary language suggesting that the power so conferred is limited to cases that would otherwise be within the express jurisdiction of this court. Therefore, the use of the unqualified expression “any case” necessarily includes cases in which this court could not have jurisdiction, provided that the jurisdictional trigger is met, that is, the implication of a substantial question of constitutional interpretation.
