Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
The Federal Constitutional Court (FCC) has ruled that the supremacy of constitutional judgment now rests with it, and all courts, including the Supreme Court, are bound by its decisions.
The FCC also developed certain principles to depart from prior Supreme Court 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 judgment notes that it is imperative to first clarify the precedential authority and binding force of its prior decisions on FCC 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 existing 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”.
“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.
“They nevertheless 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.
“Needless to mention, the doctrine of stare decisis has not been repealed; rather, it has been recalibrated to accord 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.”
The judgment notes that faith is a personal matter for each individual. If a person openly states that they believe in or adhere to a particular faith, no further investigation or proof is generally required to verify its authenticity.
“In Islam, no specific ritual is required to be performed by a non-Muslim 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, as well as belief in the oneness of Allah, the finality of the Prophet and the Holy Quran.
