Pakistan has a supreme court. Then it built a supremacist one.

Lead

Pakistan’s judiciary is navigating a constitutional realignment following the creation of the Federal Constitutional Court (FCC) under the 27th Constitutional Amendment, a move that has sparked a high-stakes jurisdictional dispute with the Supreme Court. The FCC, established late last year, claims exclusive authority over constitutional matters, while the Supreme Court, in a ruling authored by Chief Justice Yahya Afridi, has asserted that the two courts are coordinate bodies with distinct domains. Adding to the tension, the FCC has unilaterally increased its employees' salaries and benefits to levels that outpace those of the Supreme Court and high courts, raising questions about the institutional balance and financial equity within Pakistan's judiciary.

Coverage Comparison

The debate over the FCC’s role and its relationship with the Supreme Court has been extensively covered by Dawn, one of Pakistan's leading English-language dailies. Reports consistently note that the 27th Amendment created the FCC to handle constitutional cases, including disputes between federal and provincial governments, public interest litigation, and fundamental rights enforcement. The amendment also revised Article 189(1) of the Constitution, which now states that the FCC’s decisions are binding on all other courts in Pakistan, including the Supreme Court. However, the Supreme Court, in a 13-page order authored by Chief Justice Yahya Afridi, has interpreted the amendment as creating two co-equal apex courts with separate jurisdictions, rejecting the notion that the FCC is superior. This divergence has led to a legal standoff, with the FCC asserting that it holds exclusive constitutional adjudication, while the Supreme Court maintains its appellate jurisdiction under Article 185.

Dawn’s coverage also highlights the FCC’s administrative and financial moves, which have drawn scrutiny. The FCC has issued notifications that set judicial and utility allowances at 50% of basic pay each, effectively doubling salaries for its employees—a move that Dawn reports as creating a pay gap of up to Rs300,000 in some cases compared to Supreme Court staff. These financial privileges, described in one report as "unprecedented," have raised concerns about the widening disparity between the FCC and other judicial bodies, potentially undermining the principle of judicial parity.

Key Claims

• Establishment of the FCC: The 27th Constitutional Amendment created the Federal Constitutional Court, which is now responsible for all constitutional matters, including disputes between governments and fundamental rights cases. This is reported consistently across multiple sources.
• Jurisdictional Overlap: The FCC has appellate jurisdiction over cases involving substantial questions of constitutional interpretation, while the Supreme Court’s appellate jurisdiction is defined under Article 185. The amendment reduced the Supreme Court’s constitutional workload, with some cases transferred to the FCC.
• Binding Authority: Under the amended Article 189(1), the FCC’s decisions are binding on all other courts in Pakistan, including the Supreme Court. However, the Supreme Court’s recent ruling interprets the constitutional framework as placing the two courts on an equal footing, not in a hierarchical relationship.
• Financial Disparities: The FCC has increased salaries and benefits for its employees, with allowances set at 50% of basic pay, leading to total compensation that exceeds that of the Supreme Court and high courts. These expenditures are to be met from the FCC’s allocated budget.

Perspectives

The creation of the FCC was officially justified as a means to relieve the Supreme Court of its heavy constitutional caseload, allowing it to focus on civil and criminal appeals and clear its backlog. Proponents argue that a specialized constitutional court enhances efficiency and expertise. However, critics, as reflected in Dawn’s analytical pieces, view the FCC as a parallel body designed to strip the Supreme Court of its constitutional jurisdiction, potentially weakening judicial independence and concentrating power.

The Supreme Court’s ruling, authored by Chief Justice Afridi, emphasizes the "intentional arrangement" of jurisdictions across distinct domains, warning that any broader construction of Article 189(1) would subordinate one apex court to the other. This perspective seeks to preserve the Supreme Court’s status and prevent a judicial hierarchy that could undermine its authority. Meanwhile, the FCC’s assertions of exclusive constitutional interpretation suggest a more expansive reading of its mandate, indicating a fundamental disagreement over the amendment’s intent.

The financial disparities have added a new dimension to the debate, with some questioning whether the FCC’s generous pay packages signal an attempt to entrench its institutional standing. While the FCC’s actions are within its budget, the implications for judicial morale and public perception remain to be seen.

Conclusion

As Pakistan’s judiciary adjusts to its new constitutional architecture, the Supreme Court and the FCC are engaged in a defining contest over precedence and interpretation. The Supreme Court’s ruling offers a framework for coexistence, but the FCC’s continued assertions may lead to further legal challenges. The financial trajectory of the FCC, meanwhile, raises broader questions about resource allocation and institutional equity within the justice system. The outcome of this judicial tug-of-war will shape Pakistan’s legal landscape for years to come.