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........

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