PRIOR to the 27th Amendment, a decision taken by the Supreme Court of Pakistan, to the extent that it decided a question of law or enunciated one, was considered binding upon all other courts in Pakistan in terms of Article 189 of the Constitution. The 27th Amendment, by its very nature, was promulgated to carve out a new court from the existing Supreme Court. The jurisdiction of the Supreme Court in relation to constitutional questions was taken away and given to an entirely different creature — the Federal Constitutional Court.

Along with the establishment of the Federal Constitutional Court, Article 189 of the Consti­tution was also amended to reflect an entirely new reality. In terms of the amendment, any decision of the Federal Constitutional Court, to the extent that it decided a question of law or was ba­­sed upon or enunciated a principle of law, became binding on all other courts of Pakistan, including the Supreme Court. In the new scheme of things, the Federal Constitutional Court attained primacy in terms of constitutional interpretation, and even the Supreme Court, which had earlier been the apex court, was bound by its decisions.

On the face of it, this seemed pretty logical. If a new court had been established within whose pur­­view came constitutional interpretation and constitutional questions pertaining to the validity of laws, it would only make sense for such decisions and constitutional enunciations to hold sway over all other courts, including the Supreme Court.

Past Supreme Court precedents can’t be disregarded, but may be reconsidered, if required.

However, practically speaking, in rendering its rulings, the Federal Constitutional Court has been seen relying heavily on earlier enunciations of the law and rulings made by the Supreme Court. Considering that the Federal Constitutional Court is now the apex court, reliance on Supreme Court rulings would appear to some as somewhat counter-intuitive.

In relation to this, certain legal minds argue that the Federal Constitutional Court has upended the intention and objectives behind the amendments in Article 189, whereby the Supreme Court was to be bound by the decisions of the Federal Constitutional Court, and not vice versa, and in doing so, has tacitly upheld the Supreme Court’s primacy in terms of constitutional interpretation.

Others argue that the Federal Constitutional Court’s reliance on past Supreme Court rulings is not in contradiction to Article 189, as currently amended, but is merely the recognition of the principles outlined and enunciated previously by a body which was equivalent in stature to the Federal Constitutional Court prior to the 27th Amendment. In effect, the previous decisions of the Supreme Court were the decisions of the Federal Constitutional Court’s predecessor-in-interest, and as such, the Federal Constitutional Court, being its successor, inherited the entire body of precedents, and would therefore be bound by the same.

This argument may also gain further impetus in the context of the very genesis of the Federal Constitutional Court, which was not created anew with jurisdiction previously unknown to Pakistan but was carved out of an existing court whose jurisdiction was transferred to the Federal Constitutional Court. From this perspective as well, it may be reasonable to assert that any decision rendered thereby should therefore be considered a decision of the Federal Constitutional Court, as it stands today.

In any case, the dichotomies between both worldviews have taken centre stage in a recent case before the Federal Constitutional Court. In the case of ‘Shahbaz Masih vs Additional Sessions Judge, Lahore and others’, rendered on Feb 3, 2026, the Federal Constitutional Court discussed the impact of the amendments to Article 189 to that overall chain of precedence across the judicial set-up.

In this decision, the Federal Constitutional Court has held that the earlier decisions of the Supreme Court are not technically binding anymore, but nonetheless are highly persuasive. It further held that the doctrine of precedence has not been abrogated by the amendments to Article 189, but have merely been recalibrated. As such, past precedents of the Supreme Court cannot be ignored or disregarded, but may be reconsidered, if required. The Federal Constitutional Court then went on to hold that it shall ordinarily respect and follow the earlier constitutional jurisprudence evolved by the Supreme Court, and shall only differ from it if 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 an earlier Supreme Court precedent would have to be reasoned, express and principled.

In a nutshell, the Federal Constitutional Court recognised that Article 189 did not afford earlier Supreme Court decisions the status of unconditionally binding precedents vis-à-vis the Federal Constitutional Court, but nonetheless acknowledged its binding nature sans certain exceptional grounds for reconsideration. Effectively, for all practical purposes, it may be more reasonable to state that the earlier Supreme Court decisions remain binding, but only if the judgements in question satisfy certain base legal requirements.

In holding this, the Federal Constitutional Court has seemingly attempted to address and bridge the tension between the two divergent worldviews in relation to how Supreme Court judgements should be viewed. It has upheld the spirit of the amendments to Article 189, whereby the Federal Constitutional Court’s decisions hold precedence, but has also recognised the status and precedential value of earlier decisions made by a court which had an equivalent status to the one now exercising the same.

All in all, this decision serves as a stabilising factor in the overall scheme of things, and makes a concerted effort to preserve the overall law of precedence developed and established over approximately 70 years by the Supreme Court of Pakistan. Any decision which would have attempted to upend such a rich constitutional history would have been deeply disrupting and debilitating for the overall judicial system, with decades of constitutional progress being undone for the convenience of a new constitutional set-up, which, as many may argue, was not even needed.

To this end, we should be thankful, for the few blessings that come our way.

The writer is a lawyer based in Karachi.

basil.nabi@gmail.com

X: @basilnabi

Published in Dawn, April 26th, 2026