IN the earliest cosmologies, the earth was thought to be at the centre of the universe, Stephen Hawking explains in A Brief History of Time, and the sun and all the planets, stars, and other celestial bodies were believed to revolve around it. This myth of ‘geo-centrism’ or ‘Ptolemaic systems’ would be shattered by the findings of Nicolaus Copernicus in the 16th century — in much the same way, the myth that, following the 27th Amendment, the Supreme Court (SC) and the Federal Constitutional Court have been reconstructed as two co-equal courts is demonstrably shattered by the FCC’s jurisdictional assertions.
The 1973 Constitution established the SC as the apex court of the land with the final say in all litigation, constitutional or otherwise. The 26th Amendment compromised this position by creating a division within the SC and assigning adjudication of constitutional matters to a specialised constitutional bench. Nevertheless, the SC retained the solemn task of interpreting the Constitution.
However, the 27th Amendment effectively stripped the SC of its plenary power to interpret the Constitution and gave it to the newly created FCC. The 27th Amendment militates against the SC’s apex character, now an attribute of its past. Yet proponents of the amendments, including the SC itself, have strived to present ‘a theory of hierarchy’ which depicts the SC and FCC as two co-equal courts with distinct jurisdictions, and no vertical authority of one dominating the other. Such a theory is flawed, much like the myth of ‘geo-centrism’ or ‘Ptolemaic systems’.
Following the 27th Amendment, the FCC appears to precede the SC wherever courts are listed in the Constitution. This symbolic precedence is allegorical. The amended Article 189 of the Constitution now explicitly makes the FCC’s decisions binding on all courts in Pakistan, including the SC. In ‘Shahbaz Masih vs ASJ Lahore (2026)’, the FCC held: “The supremacy of constitutional adjudication now vests in this court [the FCC], and all courts, including the Supreme Court of Pakistan, are bound by its pronouncements.” Thus, the myth that no vertical relationship exists between the SC and the FCC is debunked.
The myth of co-equal courts has been shattered.
Article 175-E (5) of the Constitution declares: “The Federal Constitutional Court may, on its own motion or otherwise, if it considers that the case involves a substantial question of law as to the interpretation of the Constitution, call for the record of any case pending before any court and make such order in the case as it thinks fit.” This power is most extraordinary, and unmistakably vertical.
In ‘M/S Matracon Pakistan vs Appellate Tribunal for Sales Tax (2026)’, the FCC held that even a case that otherwise falls within the SC’s jurisdiction can be requisitioned, heard, and finally adjudicated by the FCC on the ground that it involves a question of constitutional law. Most recently, the FCC invoked Article 175-E (5) to requisition cases related to Imran Khan from the SC. Conversely, the SC has no such powers, and is unambiguously denuded of the authority to issue reciprocal orders requisitioning cases from the FCC.
The German supreme courts are subordinate to the German Federal Constitutional Court, not because an avenue of appeal exists between the two inter se but because, first, the precedents of the latter are binding on the former akin to Article 189, and second, avenues of checks, somewhat akin to Article 175-E (3) and (5), exist in the German Basic Law.
South Africa, Spain, Italy, Austria, the Czech Republic, Slovakia, Poland, and Portugal all have supreme courts and federal constitutional courts. The former courts are invariably subordinate to the latter, and in legal philosophy — understood at least since the US supreme court’s ruling in ‘Cohen vs Virginia (1821)’ — only such a model can jurisprudentially sustain the entrenched nature of the constitution.
The apex nature of the FCC is grounded in the text of the 27th Amendment, and the doctrine of ‘kompetenz-kompetenz’, which allows it to determine, without limitation, the contours of its own jurisdiction. Thus, the continued asserted supremacy of the SC is a ‘supreme myth’, which the court should abandon, rather than embarrass itself.
Many myths, even when shattered, are hard to admit, especially when doing so wounds the ego or injures prestige. In 1633, Galileo was subjected to an inquisition and ultimately convicted for teaching Copernicanism, not because the proposed model was astronomically flawed, but because it contradicted scripture and the long-held position of the Catholic Church.
The writer is a practising barrister.
Published in Dawn, October 16th, 2026
