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 adjudication now vests with it, and all courts, including the Supreme Court, are bound by its pronouncements.
The FCC has also evolved certain principles to depart from earlier Supreme Court precedent.
“The departure from earlier Supreme Court precedent may be justified only where this court (FCC) finds that such precedent is manifestly inconsistent with the text or structure of the Constitution (ii) undermines or dilutes fundamental rights, (iii) reflects judicial overreach into legislative or executive domains; or (iv) has become incompatible with evolved constitutional values and democratic norms (v) any other compelling reason which tends to advance the cause of justice,” a 16-page judgement authored by Justice Syed Hasan Azhar Rizvi read while upholding the high court order in a child marriage case.
The judgement noted that it is imperative to first clarify the precedential authority and binding force of its earlier decisions upon FCC within the framework of the prevailing constitutional dispensation.
“The frequent references to the judgments of the Supreme Court of Pakistan in our decisions may otherwise create the misimpression that this Court is unreservedly bound by those pronouncements in all circumstances, whereas that is not necessarily the position under the prevailing constitutional framework,” the judgement said, adding that “Article 189 of the Constitution, which formerly accorded binding force to the judgments of the Supreme Court of Pakistan upon all courts subordinate thereto, must now be read in light of the altered constitutional architecture.”
“Upon the establishment of this Court and the conferment upon it of final and binding authority in all matters, particularly constitutional matters, the precedential hierarchy stands constitutionally restructured. Accordingly, the binding force contemplated under Article 189 must be understood as operating subject to the overriding authority of this Court. The supremacy of constitutional adjudication now vests in this Court, and all courts, including the Supreme Court of Pakistan, are bound by its pronouncements.”
The judgement clarified that the binding force of judicial precedent is not derived from institutional seniority but from the constitutional hierarchy itself.
“Where the Constitution expressly vests final interpretative authority in a particular court, its pronouncements necessarily prevail over all others, including those of courts which formerly exercised such jurisdiction. Consequently, judgments of the Supreme Court of Pakistan rendered prior to the establishment of this Court do not operate as binding precedents upon this Court.
“They nonetheless continue to command great persuasive value, particularly when grounded in sound reasoning, reflect a consistent line of authority, and are in harmony with the text, structure, and underlying values of the Constitution.
“Needless to mention, the doctrine of stare decisis has not been abrogated; rather, it has been recalibrated to accord primacy to constitutional supremacy.
“The judicial discipline demands that precedent be reconsidered, not ignored and disregarded in silence, and that continuity be preserved except where departure becomes a constitutional necessity. Therefore, this Court would ordinarily respect and follow our earlier constitutional jurisprudence evolved by the Supreme Court of Pakistan, unless it is established that the same is manifestly erroneous, inconsistent with the constitutional text or scheme, or incompatible with fundamental rights and contemporary constitutional values.
“Any departure from earlier Supreme Court precedent would be reasoned, express, and principled. The ultimate touchstone, however, remains the Constitution itself, whose meaning this Court is duty-bound to expound with finality.”
The judgement noted that faith is a matter personal for each individual. If a person openly professes belief in or adherence to a particular faith, no further inquiry or evidence is ordinarily required to verify its genuineness.
“In Islam, no specific rituals are required to be performed by a non-Muslim before he or she is regarded as having renounced a previous faith and embraced Islam. What is required is a declaration to that effect and the recitation of the Kalma, along with belief in the Oneness of Allah, the Finality of the Prophethood, and the Holy Qur’an.
