FCC ruling on SC precedents triggers debate

Legal experts warn shift could risk conflicting interpretations

ISLAMABAD:

A fresh constitutional debate gathers pace over the Federal Constitutional Court's (FCC) recent ruling that earlier Supreme Court decisions are not unconditionally binding on it, bringing the traditional doctrine of stare decisis into question.

The ruling has opened a new front in legal discourse, with jurists parsing its implications for precedent, hierarchy and institutional balance in what increasingly appears to be a dual-court system at the apex.

A senior law officer, while talking to The Express Tribune, believes that the comity of judges demands that SC judgments before the 27th Amendment remain binding on the FCC unless reviewed by its larger bench.

He said that earlier the SC was acting as the apex constitutional court, exercising jurisdiction under Article 184 of the Constitution, and that this jurisdiction has now been transferred to the FCC under Article 175E of the Constitution.

However, he agreed that after the 27th Amendment, the SC's status has changed, and FCC decisions are binding on the present SC under Article 189 of the Constitution.

According to lawyer Haris Azmat, the FCC's view that SC precedents are not binding on it reflects 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 notes.

"This is now the law. The Federal Constitutional Court can develop its own jurisprudence without being strictly bound by Supreme Court precedent. While this may strengthen constitutional review, it also raises concerns about conflicting interpretations and legal uncertainty if both courts take divergent views", the lawyer observes.

Haris Azmat further states that the real test will be how these two institutions exercise their powers and maintain coherence in the legal system going forward. Regarding SC decisions given before the 27th Amendment, the counsel believes that these are not binding on the FCC as per the latest amendment. "That's the clear text."

Two peaks, one system

A former law officer says that the recent FCC judgment is authored by Justice Hasan Azhar Rizvi.

"I think what he is saying is that the FCC is not bound by earlier SC judgments, just as the SC itself was not bound by its own earlier judgments. It could overturn its earlier judgments. This was occasionally done by SC itself. That is all that FCC's judgment should be read to mean."

"However, it is a fact that after the 27th Amendment, the SC cannot overturn any judgment of the FCC. Whether SC can overturn its own earlier judgements involving constitutional issues is doubtful, though other than constitutional issues, I think it can still overrule its earlier judgements", he reckons.

"Justice Rizvi said ordinarily we will follow judgments of the SC, but if so inclined, the FCC may deviate. This is nothing new, but looks odd due to the duality of the two top courts presently functioning in Pakistan."

He observes that, 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 situation is further complicated by the fact that, rather than functioning as a true FCC, akin to many European constitutional courts, the FCC has evolved into more of a general appellate court, a role it now shares with the existing SC.

He further wonders why laws are being amended to substitute statutory appeals from the SC to the FCC in election, NAB and other cases. "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."

'Supreme in name only?'

Legal expert Abdul Moiz Jaferii says that the SC is left supreme in name only after the 27th Amendment and 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."

"This is the new normal. A bunch of judges were picked to the top of the hierarchy because the executive liked them. If the Supreme Court thinks otherwise, it is a simple case of denial. Appealable to the FCC and not the Supreme Court."

FCC judgment

The FCC has also evolved certain principles to depart from earlier SC 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 judgment noted that it is imperative to first clarify the precedential authority and binding force of earlier decisions upon the 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," the ruling read.

"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 judgment 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."