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 consistently asserted its judicial supremacy over the Supreme Court of Pakistan.
On Tuesday, FCC’s Justice Hasan Azhar Rizvi, while hearing a case, expressed displeasure at a lawyer for not giving priority to the FCC and choosing instead to appear before the SC.
Justice Rizvi made it clear that the FCC is the apex court of the country. He also warned that if a lawyer fails to appear before the FCC, the case may be dismissed.
Several lawyers confirmed that a practical issue arises when their cases are fixed before both the FCC and the Supreme Court simultaneously. They believe that Chief Justice of Pakistan Yahya Afridi should intervene and resolve the matter.
In several judgments, the FCC has held that its decisions are binding on all courts, including the Supreme Court. It has also clarified that the SC no longer has the authority to interpret the Constitution and the law following the 27th Constitutional Amendment.
In the Riaz Hussain case, FCC Justice Rozi Khan Barrech emphasized that Article 189 of the Constitution stipulates that any decision rendered by the SC that resolves a question of law or enunciates a principle of law is binding upon all other courts in Pakistan — except the FCC.
This exception arises from the 27th Amendment to the Constitution, which establishes that decisions issued by the FCC are binding on all courts in Pakistan, including the SC itself. Consequently, all courts in Pakistan are constitutionally required to adhere to FCC judgments.
Similarly, another FCC judge, Justice KK Agha, held in a separate decision that although under Article 189, the SC authorities are not binding on the FCC, the court may consider them to have persuasive value or to constitute obiter dicta, which it may or may not choose to follow.
FCC’s Justice Aamer Farooq also observed that Article 189 establishes that decisions of the SC are binding on all courts subordinate to it, including the high courts. At the same time, decisions of the FCC are binding on every court in the country, including both the SC and the high courts.
Recently, the FCC clarified that the SC’s authority to strike down legislation on constitutional grounds no longer rests with it under the current constitutional framework.
“The Constitution (27th Amendment) Act, 2025 has restructured the constitutional distribution of judicial power. As a consequence, the jurisdiction of the SC has been correspondingly curtailed in this regard, and the authority to strike down legislation on constitutional grounds no longer vests in it under the present constitutional scheme,” states a judgment authored by Justice Aamer Farooq.
Advocate Abdul Moiz Jaferii, commenting on the current state of affairs between the two apex courts, said that the FCC is correct.
“The SC is supreme in name only after the 27th Amendment. The fact that the FCC started functioning without adequate infrastructure or administrative support may have slowed the full assertion of its jurisdiction, which ideally should have been complete by now,” he added.
Islamabad-based lawyer Waqas Ahmad, however, said that if the FCC insists that the SC honour precedent in letter and spirit, it must equally respect the judgments of its own predecessor, the erstwhile Supreme Court of Pakistan.
“The FCC is not a court born on a tabula rasa; it emerged from the division of the former Supreme Court through the 27th Constitutional Amendment. As an institutional successor, it cannot selectively invoke stare decisis. Judicial continuity requires it to acknowledge and adhere to the binding force of past decisions from which it derives its authority,” he added.
Advocate Hafiz Ahsaan Ahmad Khokhar observed that since the establishment of two apex courts, lawyers face a sensitive professional responsibility.
“Members of the bar deeply respect both the FCC and the Supreme Court and strive diligently to assist each court while presenting their cases with impartiality, professionalism, and constitutional fidelity. Advocates often appear before both forums in similar matters and make every effort to address legal questions fully and respectfully without showing preference or bias,” he said.
He emphasized that judges of both courts should recognize this professional position and avoid remarks or institutional attitudes suggesting that lawyers must 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 stated that Articles 175, 176, 184 (as substituted), 185, 186 (as amended), 187, 189 (as amended), and 199 clearly define the jurisdiction and status of both apex courts.
He urged judges to exercise judicial restraint, respect the professional position of lawyers, avoid adverse observations, and focus on expeditious justice delivery.
Institutional harmony, mutual understanding, and constitutional discipline are essential to preserving the dignity, stability, and integrity of Pakistan’s superior judiciary, he added.
