SC, FCC operate as coordinate courts, exercising clearly demarcated jurisdictions: CJP Afridi

The ruling was made in a 13-page order authored by the CJP and issued on a set of petitions arising from a Feb 17, 2020 Peshawar High Court consolidated judgement. It was issued by a two-member bench, comprising CJP Afridi and Justice Shahid Bilal Hassan.

The order stated that the constitutional scheme following the 27th Amendment did not position the SC or the FCC as an appellate forum to each other.

The constitutional amendment was passed by Parliament in November last year, leading to the establishment of the FCC as a court that was to hear all matters of a constitutional nature, including those involving disputes between provincial and federal governments, public interest and the enforcement of fundamental rights of the people. The creation of the FCC was viewed by many as the establishment of a parallel judicial body to strip the SC of its constitutional jurisdiction and leave it only as a court of appeals.

The 27th Amendment also included revisions to Article 189 (1) of the Constitution, which now states: “Any decision of the Federal Constitutional Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan, including the Supreme Court.”

The SC order authored by CJP Afridi said the text of Article 189(1) of the Constitution “must deliberately be read in conjunction with the overall post-27th Amendment framework, which intentionally arranges jurisdiction between the Supreme Court and the FCC across distinct domains”.

“Any broader construction of Article 189(1) would have the effect of subordinating one apex court to the other in respect of proceedings constitutionally assigned to fall under its jurisdiction — a result for which there is no warrant in the constitutional text,” it said.

According to CJP Afridi’s ruling, the SC’s attention was drawn to two jurisdictional issues of the constitutional dispensation after the 27th Amendment.

The issues were explained as: “Common-disputes leading to the proper constitutional routing of writ and non-writ proceedings that are clubbed or proceeded in parallel before the high court; and the treatment of contempt proceedings arising in relation to orders passed by the SC in such matters.”

In the judgement, the CJP observed that the SC and FCC were coordinate courts exercising clearly demarcated jurisdictions. He stated that the constitutional framework after the 27th Amendment assigned “exclusive competence over different categories of proceedings” to the two courts, rather than establishing a “vertical hierarchy”.

Article 189 ensured consistency in legal principles but did not subordinate one court to the other, CJP noted.

“As constitutionally mandated, the application and scope of Article 189(1) are limited to questions of law … and do not extend to the outcome reached in any particular case by FCC,” the order said.

The appellate routes to the SC and FCC were, ultimately, constitutionally distinct and operate independently, the CJP said.

He further observed that Article 175F(2) of the Constitution, read with Article 175F(1), “expressly affords inter-alia jurisdiction”. He added that appeals on judgements or orders of a high court were to be heard by the FCC.

All such matters pending before the SC stood transferred to the FCC, which had the exclusive jurisdiction to hear and decide them, the order said. In contradistinction, the appellate jurisdiction of the Supreme Court was constitutionally defined in Article 185 of the Constitution, it said, citing clause 1 of the article.

It states: “Subject to this Article and Article 175F, the SC shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of the high court.”

“Article 185, accordingly, governs the appellate jurisdiction of the SC in respect of appeals arising from judgements, decrees, final orders, or sentences of the high court in cases which do not fall within Article 175F of the Constitution,” the CJP said.

“Thus, the scheme of the Constitution, as it presently stands, is unambiguous: all writ proceedings, except those relating to rent and family matters, are within the jurisdiction of the FCC, whereas all regular proceedings are within the jurisdiction of the Supreme Court,” the order read.

“Consequently, all matters falling within the appellate jurisdiction of the FCC are by … stand transferred to the FCC while all regular proceedings are to be heard and decided by the SC itself.”

The order said that any writ and regular proceedings that had been clubbed together must, therefore, in conformity with the present constitutional framework, be de-clubbed, so that each category of cases may be routed to its proper forum.

The CJP recalled that prior to the 27th Amendment, matters were routinely clubbed where they had proceeded in parallel before the SC or involved common questions of law.

Routing such cases to their respective forums under the present constitutional dispensation, thus, may give rise to a potential complication: both writ-proceedings and regular-proceedings may entail adjudication of the same question of law before the FCC and the Supreme Court, respectively, thereby increasing the possibility of contradictory decisions, the judgment said.

Referring to contempt of court proceedings connected with the case at hand, the SC decided that since the matter emanated from regular proceedings, the contempt proceedings would be heard by it instead of being transferred to the FCC.