ISLAMABAD – The legal community is grappling with the implications of a landmark FCC judgment that challenges the traditional understanding of judicial precedent in Pakistan. The ruling, authored by Justice Syed Hasan Azhar Rizvi, clarifies that the FCC—established under the 27th Amendment—is not automatically bound by earlier Supreme Court decisions, though it may follow them as persuasive authority.
The judgment has sparked intense debate among lawyers, law officers, and legal experts about the relationship between the FCC and the Supreme Court, the binding nature of precedents, and the future of constitutional adjudication in Pakistan.
The FCC’s Position
In a 16-page judgment upholding a high court order in a child marriage case, the FCC laid out principles for when it may depart from earlier Supreme Court precedent. The departure may be justified only where the FCC finds that such precedent:
- Is manifestly inconsistent with the text or structure of the Constitution
- Undermines or dilutes fundamental rights
- Reflects judicial overreach into legislative or executive domains
- Has become incompatible with evolved constitutional values and democratic norms
- Any other compelling reason which tends to advance the cause of justice
The judgment emphasized 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,” the ruling read.
The 27th Amendment and Constitutional Restructuring
The judgment noted that Article 189 of the Constitution, which formerly accorded binding force to Supreme Court judgments upon all subordinate courts, “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,” the ruling stated.
The FCC clarified that judgments of the Supreme Court rendered prior to its establishment “do not operate as binding precedents upon this Court,” though they “continue to command great persuasive value.”
Divergent Views Among Legal Experts
A senior law officer, speaking to The Express Tribune on condition of anonymity, argued that the comity of judges demands that Supreme Court judgments before the 27th Amendment remain binding on the FCC unless reviewed by its larger bench.
He noted that the Supreme Court was previously acting as the apex constitutional court, exercising jurisdiction under Article 184, and that this jurisdiction has now been transferred to the FCC under Article 175E. However, he agreed that after the 27th Amendment, the Supreme Court’s status has changed, and FCC decisions are binding on the present Supreme Court under Article 189.
A Major Constitutional Shift
Lawyer Haris Azmat described the FCC’s view as reflecting “a major constitutional shift after the 27th Amendment and changes to Article 189.”
“Traditionally, Supreme Court judgments were binding on all courts to ensure consistency in the legal system. The amendment appears to place the Federal Constitutional Court on an independent footing in constitutional interpretation,” he noted.
Azmat observed that the FCC can now “develop its own jurisprudence without being strictly bound by Supreme Court precedent,” adding that while this may strengthen constitutional review, “it also raises concerns about conflicting interpretations and legal uncertainty if both courts take divergent views.”
Regarding Supreme Court decisions given before the 27th Amendment, Azmat believes they are not binding on the FCC. “That’s the clear text,” he said.
‘Supreme in Name Only’
Legal expert Abdul Moiz Jaferii offered a stark assessment: the Supreme Court is left “supreme in name only” after the 27th Amendment, adding that “this was the expressed intent of the legislature.”
“To assume that the powers that be would have let past precedent bind their handpicked dispensers of justice would negate the need for the amendment itself,” Jaferii said. “This is the new normal. A bunch of judges were picked to the top of the hierarchy because the executive liked them.”
A Former Law Officer’s Perspective
A former law officer offered a more measured interpretation, suggesting that the FCC judgment should be read to mean that the FCC is not bound by earlier Supreme Court judgments “just as the Supreme Court itself was not bound by its own earlier judgments.”
“It could overturn its earlier judgments. This was occasionally done by the Supreme Court itself. That is all that FCC’s judgment should be read to mean.”
However, he noted that after the 27th Amendment, “the Supreme Court cannot overturn any judgment of the FCC.”
He also raised concerns about the FCC’s expanding role: “Which constitutional court in the world hears ordinary statutory appeals not involving any constitutional question? I think these amendments providing for statutory appeals to the FCC are against the spirit of the 27th Amendment itself and motivated by extraneous considerations.”
The Doctrine of Stare Decisis Recalibrated
The FCC judgment emphasized that 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,” the ruling stated.
The court clarified that it 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.”
“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.”
Analysis: A New Constitutional Architecture
The FCC ruling represents a watershed moment in Pakistan’s constitutional history. By asserting its authority to depart from Supreme Court precedent, the FCC is laying claim to a position of primacy in constitutional interpretation—a position that the Supreme Court has held since the country’s founding.
The 27th Amendment, which established the FCC and restructured the judicial hierarchy, created the legal framework for this shift. But the FCC’s ruling translates that framework into operational principles, clarifying when and how it will follow—or depart from—past Supreme Court decisions.
For the legal community, the ruling raises practical questions about how the two apex courts will interact. If the FCC is not bound by Supreme Court precedent, and if its decisions are binding on the Supreme Court, then the FCC has effectively become the superior court in constitutional matters—a dramatic change from the previous hierarchy.
The coming months will test how the two institutions navigate their new relationship. Will the Supreme Court accept its subordinate status in constitutional matters? Will the FCC exercise restraint in departing from precedent, or will it actively reshape constitutional jurisprudence? And how will the legal system maintain coherence and predictability if the two courts take divergent views?
As one former law officer noted, “At the end of the day, only one top court will remain.” Which court ultimately survives remains uncertain, though at present the FCC appears to have the advantage. The debate over precedents is not merely academic—it will shape the future of constitutional adjudication in Pakistan for decades to come.
