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Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
The Federal Constitutional Court (FCC) has made clear that the Supreme Court’s power to strike down legislation on constitutional grounds no longer rests with it under the current constitutional regime.
“The Constitutional (Twenty-seventh) Amendment Act, 2025 restructured the constitutional distribution of judicial power. Accordingly, the jurisdiction of the Supreme Court has been reduced accordingly in this regard, and the power to strike down legislation on constitutional grounds is no longer vested in it under the present constitutional scheme,” the court said.
The court held that the Khyber-Pakhtunkhwa Services Sales Tax Act, 2022 was 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 in “our jurisdiction under the Constitution”, the omission does not deprive the FFC of its jurisdiction in the case.
“This is so because Revenue Reference No. 18 of 2023 raises a substantial question of constitutional interpretation,” the judgment said, adding that the Supreme Court of Pakistan exercises no jurisdiction in matters requiring consideration of the virtue of law.
The FCC held that Section 175E(5) authorizes it to request the record of “any matter,” and invoking “this provision, by itself, confers on this Court jurisdiction to decide a matter in which it might otherwise lack express jurisdiction.”
“Conversely, because this Court is the ultimate forum for determining the vires of a statute, it possesses the power to hear cases even in the absence of express jurisdiction, provided that a substantial question of constitutional interpretation is at stake. In the present case, such a question arises squarely in the form of a challenge to the vires of the challenged statute.”
The judgment indicates that a collective and harmonious reading of the constitutional regime governing the two courts establishes that “this court is the only supreme authority competent to rule on questions… of law as to the interpretation of the Constitution, including vires of legislation”.
“Although such jurisdiction may previously have been exercised by the Supreme Court under a prior constitutional framework, under the present constitutional scheme, such authority rests exclusively with this Court (FCC),” the judgment added.
“Section 175E(5) provides that the Federal Constitutional Court ‘may’ apply for registration of a case, thereby conferring on this Court a discretionary, but constitutionally structured, power. The discretion is further expanded by the opening words, which enable this Court to act either on its own initiative or otherwise, meaning that jurisdiction can be triggered suo sponte or on application made before it.”
However, the judgment continues, this power is not unstructured, because the provision itself limits its exercise by a substantive condition, namely that the case must involve a “substantial question of law as to the interpretation of the Constitution”.
“While we do not exhaustively delineate the circumstances in which such a question arises, it stands to reason that a challenge to the vires of a statute inherently raises a substantial question of constitutional interpretation, because the invalidation of a statute can rest only on its inconsistency with a constitutional provision or command.”
The judgment clarifies that the provision authorizes the court to request the record of “any matter”. Unqualified language admitting no distinction as to the nature, form or classification of procedures thus extends to cases of all kinds, including, but not limited to, tax references.
“The extent of this authority is further enhanced by the expression ‘any court,’ from which the record may be called. The Constitution does not define or limit this expression, and it must therefore be construed to encompass all courts and tribunals of the judicial hierarchy of this country, without exception.”
Notably, the judgment adds, the provision does not contain any negative or exclusionary language suggesting that the power so conferred is limited to cases which otherwise fall within the express jurisdiction of this court. Use of the unqualified phrase “any case” therefore necessarily includes cases in which this court could not otherwise have jurisdiction, provided that the jurisdictional trigger, namely the implication of a substantial question of constitutional interpretation, is satisfied.
