Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
Since its creation, the Federal Constitutional Court (FCC) has continued to assert its judicial supremacy over the Supreme Court of Pakistan.
On Tuesday, FCC Judge Hasan Azhar Rizvi, while hearing a case, expressed his displeasure with a lawyer for not prioritizing the FCC and choosing to appear before the SC.
Judge Rizvi made it clear that the FCC is the highest court in the land. He also warned that if an attorney did not appear before the FCC, the case could be dismissed.
Several attorneys confirmed that a practical problem arises when their cases are decided simultaneously before the FCC and the Supreme Court. They believe that the Chief Justice of Pakistan, Yahya Afridi, should intervene and resolve the issue.
In several rulings, the FCC has held that its decisions are binding on all courts, including the Supreme Court. He also clarified that the SC no longer has the power to interpret the Constitution and the law following the 27th constitutional amendment.
In the Riaz Hussain case, FCC Judge Rozi Khan Barrech pointed out that Article 189 of the Constitution states that any decision made by the SC which resolves a question of law or enunciates a principle of law is binding on all other courts of Pakistan except the FCC.
This exception arises from the 27th Amendment to the Constitution, which establishes that decisions made by the FCC are binding on all courts of Pakistan, including the SC itself. Therefore, all courts in Pakistan are constitutionally bound to comply with the judgments of the FCC.
Similarly, another FCC judge, Justice KK Agha, held in a separate ruling that although under Section 189 SC authorities are not binding on the FCC, the court may consider them to have persuasive value or to constitute dicta, which it may or may not choose to follow.
Justice Aamer Farooq of the FCC also observed that Section 189 establishes that the decisions of the SC are binding on all courts subordinate to it, including the high courts. At the same time, FCC decisions are binding on all courts nationwide, including the SC and high courts.
Recently, the FCC clarified that the SC’s power to strike down legislation on constitutional grounds no longer rests with it under the current constitutional framework.
“The Constitution (27th Amendment) Act, 2025 restructured the constitutional distribution of judicial power. Accordingly, the jurisdiction of the Security Council has been reduced accordingly in this regard, and the power to strike down legislation on constitutional grounds no longer rests with it under the current constitutional regime,” reads a judgment written by Justice Aamer Farooq.
Lawyer Abdul Moiz Jaferii, commenting on the current state of affairs between the two supreme courts, said the FCC was right.
“The SC is supreme in name only after the 27th Amendment. The fact that the FCC began operating without adequate infrastructure or administrative support may have slowed down the full assertion of its jurisdiction, which ideally should have been completed by now,” he added.
Islamabad-based lawyer Waqas Ahmad, however, said that while the FCC insists that the SC honor precedent in letter and spirit, it must also respect the judgments of its own predecessor, the erstwhile Supreme Court of Pakistan.
“The FCC is not a court born on a clean slate; it emerged from the division of the old Supreme Court by the 27th Constitutional Amendment. As an institutional successor, it cannot selectively invoke stare decisis. Judicial continuity requires that it recognize and adhere to the binding force of past decisions from which it derives its authority,” he added.
Lawyer Hafiz Ahsaan Ahmad Khokhar observed that since the establishment of two apex courts, lawyers are facing a delicate professional responsibility.
“Members of the bar deeply respect both the FCC and the Supreme Court and diligently strive to assist each court while presenting their cases with impartiality, professionalism and constitutional fidelity. Attorneys often appear before both forums in similar cases and make every effort to answer legal questions completely and respectfully, without showing preference or bias,” he said.
He stressed that judges of both courts should recognize this professional position and avoid remarks or institutional attitudes suggesting that lawyers should prioritize one court over the other.
Such observations could create practical difficulties, affect advocacy and foster perceptions of competition or hierarchy between the two apex courts, thereby undermining institutional harmony.
Khokhar said Articles 175, 176, 184 (as replaced), 185, 186 (as amended), 187, 189 (as amended) and 199 clearly define the jurisdiction and status of the two apex courts.
He urged judges to exercise judicial restraint, respect the professional position of lawyers, avoid adverse submissions and focus on delivering justice quickly.
Institutional harmony, mutual understanding and constitutional discipline are essential for preserving the dignity, stability and integrity of Pakistan’s judiciary, he added.
