SC says it is not subordinate to FCC under amended constitutional framework

ISLAMABAD: The Supreme Court (SC) has held in a recent judgment that it is not subordinate to the Federal Constitutional Court (FCC), setting out its view that the post-27th Constitutional Amendment framework creates two co-equal apex courts with separate jurisdictions rather than a hierarchy placing one above the other.

The ruling was authored by Chief Justice of Pakistan (CJP) Yahya Afridi in a 13-page judgment delivered while deciding two issues that arose after the 27th Constitutional Amendment. A division bench headed by CJP Afridi heard the matter after clubbing together a writ petition, a civil revision and a contempt application.

The court ruled that, under the constitutional framework introduced by Article 175F, the civil revision and contempt matters would remain before the SC, while the writ petition would be transferred to the FCC for adjudication.

According to the judgment, amended Article 189(1) states that any decision of the FCC shall, to the extent that it decides a question of law or lays down a principle of law, be binding on all other courts in Pakistan, including the SC. However, CJP Afridi said the provision must be read alongside the broader constitutional structure created after the amendment.

The chief justice further said the constitutional arrangement gives each court exclusive authority over different categories of proceedings instead of creating a vertical chain of command. "As constitutionally mandated, the application and scope of Article 189(1) are limited to questions of law, as reflected in the ratio decidendi, and do not extend to the outcome reached in any particular case by the Federal Constitutional Court. The appellate routes to the Supreme Court and the Federal Constitutional Court are, ultimately, constitutionally distinct and operate independently, in so far as the outcomes of individual cases are concerned," he stated.

The judgment added that the constitutional scheme does not make either court an appellate forum for the other, but instead treats both as coordinate courts with clearly separated jurisdictions. "The constitutional scheme does not position either of the two apex courts as an appellate forum to each other; rather, it treats both as coordinate courts exercising clearly demarcated jurisdictions over distinct classes of matters. Any broader construction of Article 189(1) would have the effect of subordinating one apex Court to the other in respect of proceedings constitutionally assigned to fall under its jurisdiction; a result for which there is no warrant in the constitutional text."

Debate over constitutional structure

The judgment has prompted legal debate because it differs from several FCC rulings that have said constitutional adjudication now lies exclusively with that court after the 27th Amendment.

A senior law officer said the SC and FCC have different jurisdictions, but maintained that the FCC has the power to withdraw any case to itself and, in the overall scheme, is superior to the SC.

Former additional attorney general Waqar Rana said the Constitution, as amended through the 27th Amendment, makes the SC subordinate to the FCC in constitutional matters, while leaving it the final court in other areas. "After having allowed the parliament to change the salient features of constitution of 1973 without any demur the SC lost its jurisdiction to FCC. It could not get it back unless it declares the amendment unconstitutional," he said.

Waqar Rana also said the opportunity was lost when CJP Afridi did not constitute a full court to hear the challenge to the 26th Amendment.

Advocate Umer Gilani said the judgment appeared to be an effort by the chief justice to secure a co-equal position for the SC, but argued that such an interpretation could not be sustained. "Both the text and the context of the 27th Amendment make it obvious that Pakistan's apex court is the FCC. The Supreme Court is now one of the subordinate courts. If I were to put it simplicity - and some truths can only be uttered with childlike simplicity- Humpty had a great fall, and no interpretative sleight of hand can put it back together again," he said.

FCC’s earlier position

In several earlier judgments, the FCC has said its decisions are binding on all courts, including the SC, and has stated that the SC no longer retains authority to interpret the Constitution and law after the 27th Amendment.

In the Riaz Hussain case, FCC Justice Rozi Khan Barrech said Article 189 provides that any decision of the SC is binding on all other courts in Pakistan except the FCC. According to that ruling, the exception flows from the 27th Amendment, which makes FCC decisions binding on all courts, including the SC.

In another decision, Justice KK Agha said SC judgments are not binding on the FCC, though they may be treated as persuasive or as obiter dicta. FCC Justice Aamer Farooq also observed that while SC decisions bind subordinate courts, FCC decisions bind every court in the country, including the SC and the high courts.

The FCC has also recently said that the SC no longer has the authority under the current framework to strike down legislation on constitutional grounds. In another ruling, it said Article 189 must now be read in light of the changed constitutional structure, adding that the binding force of precedent comes from constitutional hierarchy rather than institutional seniority.