SC can ‘no longer strike down’ legislation

Islamabad, Pakistan – The Federal Constitutional Court (FCC) has affirmed its exclusive authority to determine the constitutionality of legislation, clarifying that the Supreme Court no longer holds that power under the current constitutional framework.

Constitutional Restructuring and Judicial Power

The court stated that the Constitution (Twenty-Seventh) Amendment Act, 2025, has restructured the distribution of judicial power, curtailing the Supreme Court’s jurisdiction to strike down legislation on constitutional grounds.

In a nine-page judgement authored by Justice Aamer Farooq, the FCC ruled that the Khyber-Pakhtunkhwa Sales Tax on Services Act, 2022, is not unconstitutional. While acknowledging that tax references aren’t expressly within its jurisdiction, the court asserted this omission doesn’t negate its authority in this specific case.

The court determined that Tax Reference No. 18 of 2023 raises a “substantial question of constitutional interpretation,” a key factor in establishing jurisdiction. The Supreme Court of Pakistan, the judgement stated, does not currently exercise jurisdiction over matters requiring examination of a law’s validity.

Article 175E(5) and the FCC’s Authority

The FCC cited Article 175E (5) of the Constitution, which authorizes it to request case records, as a basis for its jurisdiction. The court argued that invoking this provision, in itself, grants the FCC the power to adjudicate matters where it might not otherwise have express jurisdiction.

Conversely, the court maintained that as the ultimate forum for determining the validity of legislation, it possesses the authority to hear cases even without explicit jurisdiction, provided a substantial question of constitutional interpretation is present. The current case, the court found, squarely presents such a question.

The judgement concluded that a comprehensive reading of the constitutional scheme governing both courts establishes the FCC as the “sole apex forum competent to adjudicate upon questions … of law as to the interpretation of the Constitution, including the vires of legislation.”

Previously, the Supreme Court may have exercised this jurisdiction under a different constitutional framework, but under the current scheme, the authority rests exclusively with the FCC.

Discretionary Power and Constitutional Interpretation

Article 175E (5) grants the FCC the discretionary power to call for case records, either on its own initiative or upon application. However, this power is contingent on the case involving a “substantial question of law as to the interpretation of the Constitution.”

The court noted that a challenge to the validity of a law inherently raises a substantial question of constitutional interpretation, as invalidating legislation requires demonstrating its inconsistency with a constitutional provision.

The provision authorizes the court to call for the record of “any case,” a broad and unqualified term that extends to all types of proceedings, including tax references. The Constitution does not define or limit the phrase “any court,” meaning it encompasses all courts and tribunals within the country’s judicial hierarchy.

The judgement also highlighted the absence of any exclusionary language suggesting the conferred power is limited to cases within the FCC’s express jurisdiction. The use of “any case” necessarily includes cases where the court may not otherwise have jurisdiction, provided the jurisdictional trigger – a substantial question of constitutional interpretation – is met.