The Supreme Court (SC) of Pakistan has ruled that the Supreme Court and the Federal Constitutional Court are “coordinate courts” operating within distinct constitutional jurisdictions, with neither institution subordinate to the other.
Hearing a bunch of petitions, the SC’s two-member bench – comprising Chief Justice Yahya Afridi and Justice Shahid Bilal Hassan – clarified the constitutional division of jurisdiction between the Supreme Court and the newly-established FCC following the 27th Constitutional Amendment.
The Federal Constitutional Court was established under the 27th Constitutional Amendment in November last year, with equal representation from all provinces.
The judgment arises from a common decision of the Peshawar High Court, in which both constitutional writ proceedings and regular civil proceedings had been clubbed together and subsequently brought before the Supreme Court.
The SC ruled that writ and regular proceedings be separated and routed to their respective forums under the post-27th Constitutional Amendment framework.
The bench held that constitutional “writ proceedings” arising under Article 199 of the Constitution now fall exclusively within the jurisdiction of the Federal Constitutional Court, while ordinary civil and regular appellate matters will continue to be heard by the Supreme Court under Article 185 of the Constitution.
“All writ proceedings, except those relating to rent and family matters, are within the jurisdiction of the Federal Constitutional Court, whereas all regular proceedings are within the jurisdiction of the Supreme Court,” the judgment read.
The SC observed that Article 175F, inserted through the 27th Seventh Constitutional Amendment, created a separate constitutional forum with specifically demarcated appellate powers. Under Article 175F, all appeals arising from High Court judgments passed under Article 199 stand transferred to the Federal Constitutional Court, except matters relating to rent and family disputes.
The Supreme Court maintained that the constitutional framework after the amendment establishes two distinct apex courts exercising independent jurisdictions rather than one court functioning in appellate supervision over the other. The judgment noted that the Federal Constitutional Court and the Supreme Court are “coordinate courts” operating in separate constitutional domains.
The SC clarified that Article 189 of the Constitution, which deals with binding precedents, does not subordinate one apex court to the other. The Court held that decisions of the Federal Constitutional Court would remain binding only to the extent of legal principles and questions of law, but neither court could act as an appellate forum over the other’s judgments.
The judgment further warned that continuing to hear clubbed writ and non-writ proceedings together after the constitutional amendment could create jurisdictional conflicts and contradictory decisions.
To avoid such complications, the Court directed that all such combined matters pending before the Supreme Court must now be “de-clubbed” and routed to their constitutionally designated forums.
While addressing concerns regarding potentially conflicting judgments between the two apex courts, the Supreme Court invoked the doctrine of judicial comity, observing that both courts should exercise restraint and prudent case management to avoid inconsistent rulings on overlapping legal questions.
Applying these principles to the present case, the SC ordered that the regular civil appellate petitions would remain before the Supreme Court, whereas the writ petition arising under Article 199 would stand transferred to the Federal Constitutional Court.
The SC also ruled that contempt proceedings connected with orders passed by the Supreme Court would continue to remain within the Supreme Court’s jurisdiction, even after the constitutional amendment, because contempt powers are tied to the authority and dignity of the court whose orders were allegedly violated.