Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
A new constitutional debate is gathering pace following the Federal Constitutional Court’s (FCC) recent ruling that previous Supreme Court rulings are not unconditionally binding, calling into question the traditional doctrine of stare decisis.
The decision opened a new front in legal discourse, with legal scholars analyzing its implications for precedent, hierarchy and institutional balance in what increasingly appears to be a two-court system at the top.
A senior legal scholar, while speaking to The Express PK Press Club, believes that the judges’ panel is demanding that SC judgments prior to the 27th Amendment remain binding on the FCC unless reviewed by its larger bench.
He said that previously the SC acted as the supreme constitutional court, exercising its jurisdiction under Article 184 of the Constitution, and that jurisdiction had 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 changed and the FCC’s decisions are binding on the current 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 change after 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 on an independent footing in matters of constitutional interpretation,” he notes.
“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 review, it also raises concerns about conflicting interpretations and legal uncertainty if the two courts adopt divergent views,” observes the lawyer.
Haris Azmat further states that the real test will be how these two institutions exercise their powers and maintain consistency in the legal system in the future. Regarding SC decisions made before the 27th Amendment, the attorney believes that they are not binding on the FCC under the latest amendment. “This is the plain text.”
Two summits, one system
A former lawyer says the recent FCC ruling is authored by Judge Hasan Azhar Rizvi.
“I think what it says is that the FCC is not bound by SC’s prior judgments, just as the SC itself was not bound by its own prior judgments. It could overturn its prior judgments. This has occasionally been done by SC itself. That’s all that the FCC’s judgment should be interpreted to mean.”
“However, it is a fact that after the 27th Amendment, the SC cannot overturn any judgment of the FCC. It is doubtful whether the SC can overturn its own previous judgments involving constitutional issues, although, apart from constitutional issues, I think it can still overturn its previous judgments,” he believes.
“Justice Rizvi said that usually we would follow the judgments of the SC, but if desired, the FCC could deviate from it. This is not new, but it seems strange due to the duality of the two highest courts currently functioning in Pakistan.”
He observes that ultimately there will be only one supreme court left. It remains unclear which court will ultimately survive, although at present the FCC appears to have the advantage.
The situation is further complicated by the fact that, rather than functioning as a true FCC, like many European constitutional courts, the FCC has become more of a general appeals court, a role it now shares with the existing SC.
He further questions why laws are being changed to supersede the SC’s statutory appeals to the FCC during elections, NAB, and other cases. “What constitutional court in the world hears ordinary statutory appeals involving no constitutional question. I believe these amendments providing for statutory appeals to the FCC are contrary to 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 in name only after the 27th Amendment and that was the expressed intention of the legislature. “To assume that the powers that be would have allowed precedent to bind their hand-picked dispensers of justice would negate the need for the amendment itself.”
“This is the new normal. A group of judges were chosen at the top because the executive branch liked them. If the Supreme Court thinks otherwise, it’s a simple case of denial. It can be appealed to the FCC, not the Supreme Court.”
FCC ruling
The FCC also developed some principles to depart from previous SC precedent.
“Departure from previous Supreme Court precedent can be justified only if this court (FCC) finds that such precedent is manifestly inconsistent with the text or structure of the Constitution (ii) impairs or dilutes fundamental rights, (iii) reflects excessive judicial overreach in the legislative or executive spheres; or (iv) has become inconsistent with constitutional values and evolved democratic norms (v) any other compelling reason which tends to advance the cause of justice,” a 16-page judgment written by Justice. Syed Hasan Azhar Rizvi read while upholding the High Court order in a child marriage case.
The ruling notes that it is imperative to first clarify the precedential authority and binding force of prior FCC rulings under the existing constitutional scheme.
“Frequent references to the judgments of the Supreme Court of Pakistan in our decisions may otherwise create the false impression that this Court is unqualifiedly bound by such pronouncements in all circumstances, whereas this is not necessarily the case under the prevailing constitutional framework,” the judgment said, adding that “Article 189 of the Constitution, which once gave binding force to the judgments of the Supreme Court of Pakistan in respect of all courts subordinate to it, must now be read in the light of the constitutional architecture modified,” the judgment states.
“Upon the establishment of this Court and the granting of final and binding authority in all matters, particularly constitutional matters, the hierarchy of precedents is constitutionally restructured. Accordingly, the binding force contemplated by Article 189 must be understood as acting under 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 judgment 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 interpretive power on a particular court, its decisions necessarily take precedence over all others, including those of courts which previously exercised that jurisdiction. Therefore, judgments of the Supreme Court of Pakistan rendered before the establishment of this Court do not constitute a binding precedent on 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 underlying text, structure, and 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 revisited, not ignored and silently neglected, and that continuity be preserved, except where departure becomes a constitutional necessity. Therefore, this Court would ordinarily respect and follow our previous constitutional jurisprudence developed by the Supreme Court of Pakistan, unless it is found to be manifestly erroneous, inconsistent with the constitutional text or scheme, or inconsistent with fundamental rights and contemporary constitutional values.”
“Any departure from previous Supreme Court precedent would be reasoned, express and principled. The ultimate touchstone, however, remains the Constitution itself, which this Court has a duty to definitively expound.”
