FCC says Article 175 E (5) grants it jurisdiction to hear ‘any case’
ISLAMABAD: The Federal Constitutional Court (FCC) held that Article 175 E (5) authorises it to call for the record of “any case,” and the invocation of this provision, by itself, confers jurisdiction upon this Court to adjudicate a matter in which it might otherwise lack express jurisdiction.
Article 175 E (5)2 provides that the FCC “may” call for the record of a case, thereby vesting a discretionary, but constitutionally structured power in the Federal Constitutional Court.
A two-judge bench of the FCC comprising Justice Aamer Farooq and Justice Rozi Khan Barrech delivered the judgment against the Peshawar High Court in tax reference.
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The petitioners’ counsel had contended before the Court that Serial No. 14 of Schedule 2 to the impugned law (Service Act), when read in conjunction with Entry 49 of the Constitution, is ultra vires because tax on services, after the passage of Constitution (18th Amendment) Act, 2010, is a provincial subject, while the tax being sought from the petitioners by Khyber Pakhtunkhwa Revenue Authority (KPRA) as “Construction Services” includes tax on goods which could only be levied by the federation under Entry 49 of the Constitution.
The judgment declared that Serial No. 14 of Schedule 2 to the Khyber Pakhtunkhwa Sales Tax on Services Act, 2022 is not ultra vires the Constitution. It said: “Although tax references are not expressly enumerated within our jurisdiction under the Constitution, this omission does not divest this Court of jurisdiction in the present case. This is so because Tax Reference No. 18 of 2023 raises a substantial question of constitutional interpretation (vires of the Provincial law).”
It further said that the Supreme Court of Pakistan (SBP) does not exercise any jurisdiction in matters requiring examination of vires of the law. A collective and harmonious reading of the constitutional scheme governing both Courts establishes that this Court (FCC) is the sole apex forum competent to adjudicate upon questions involving substantial question of law as to the interpretation of the Constitution, including the vires of legislation.
The judgment said that this Court is the ultimate forum for determining the vires of legislation; it possesses the authority to entertain cases even in the absence of express jurisdiction, provided a substantial question of constitutional interpretation is involved. In the present case, such a question squarely arises in the form of a challenge to the vires of the impugned law.
It said that some constitutional provisions are “character-conferring” and also “competence-enumerating”; Article 175E (5) is of this kind. Article 175E (5) is not merely a procedural clause conferring a power to transfer cases before this Court. Rather, it encapsulates the very character and raison d’être of this Court, namely, to adjudicate cases involving substantial questions of law as to the interpretation of the Constitution.
By removing jurisdictional or subject-matter limits, Article 175E (5) enables the Court to intervene wherever substantial constitutional meaning is at stake, it said. Historically, the Supreme Court exercised comparable authority, including the power to interpret the Constitution and to examine the validity of legislation.
The judgment said that however, the Constitution (Twenty-Seventh) Amendment Act, 2025 has restructured the constitutional distribution of judicial power. As a consequence, the jurisdiction of the Supreme Court has been correspondingly curtailed in this regard, and the authority to strike down legislation on constitutional grounds no longer vests in it under the present constitutional scheme. “In view of the foregoing, we have adjudicated upon Tax Reference No. 18 of 2023 solely because it raises a question concerning the vires of the impugned law.”
Copyright Business Recorder, 2026