FCC Says Its Obiter Dicta on Points of Law Bind Supreme Court

Independently written and published by Shahbaz Shah Legal Journal.

The Federal Constitutional Court of Pakistan has said that its observations on points of law can bind every other court in Pakistan, including the Supreme Court, even when those observations go beyond the reasoning needed to decide the case. The FCC made that point under Article 189(1) in a judgment that also held that two appointments at Islamabad’s private schools regulator could not continue after the ordinance that supported them expired. Judgment, paragraph 14 Paragraphs 17–20

The FCC judgments register records the upload on 4 November 2026. The judgment is dated 18 September 2026. Justice Aamer Farooq wrote for a three-member bench that also included Chief Justice Amin-ud-Din Khan and Justice Ali Baqar Najafi. Bench and case reference Date and final order

Which observations carry binding force?

Obiter dicta are observations beyond the reasoning necessary to decide the dispute. The bench read the amended Article 189(1) as giving binding force to an FCC observation in a judgment or order if it decides a question of law, is based on a principle of law or states one. The Court used the same constitutional test for both the reasoning necessary to decide a case and observations beyond it. Judgment, paragraph 14 Gazette of Pakistan, Twenty-seventh Amendment, section 34.

The bench was explaining why it could adopt a Supreme Court precedent on expired ordinances. It agreed with Pakistan Medical and Dental Council v. Muhammad Fahad (2018 SCMR 1956) and cited its reasoning with approval. Under Article 189(2), the Supreme Court’s legal rulings continue to bind the other courts covered by that clause, with the FCC expressly excepted. The Balochistan Trading Company judgment considers that relationship in a review petition. Judgment, paragraph 14 Gazette of Pakistan, section 34.

The appointments depended on an expired ordinance

Imtiaz Ali Qureshi and Waqas Mahmood had been appointed as ICT-PEIRA members for academics and registration, respectively, on what were described as permanent terms. The federal government terminated their services in 2021. The Islamabad High Court allowed their writ petitions and dismissed the authority’s intra-court appeals. The High Court’s Division Bench relied in part on Article 264(b) and (c), which protect acts duly done and rights already accrued under a repealed law. Judgment, paragraphs 3–5 Paragraph 13

The FCC identified a gap of almost three years between the expiry of the 2009 Ordinance on 26 March 2010 and the enactment of the 2013 Act. The new Act contained no express provision preserving these appointments. The bench held that Article 264 and Section 6 of the General Clauses Act, 1897, could not turn positions created under the temporary framework into permanent appointments. It explained that giving a temporary instrument that effect would let the executive make lasting law without Parliament’s approval. Judgment, paragraph 11 Paragraphs 16–18

The Court treated the allegations about manipulation of the selection process as disputed factual matters requiring evidence. Its decision turned on the statutory basis for the appointments and whether it survived. It converted both petitions into appeals, allowed them, set aside the High Court judgments and dismissed the members’ writ petitions, with no order as to costs. Judgment, paragraph 12 Paragraphs 19–20

Case details and searchable judgment summary · Official FCC judgment PDF, 17 pages

Frequently asked questions

Does every FCC remark bind the Supreme Court?

The FCC tied binding force to Article 189(1). An observation must decide a question of law, be based on a principle of law or enunciate one. The Court said this can include obiter dicta that meet the test. Judgment, page 13.

Why did the two ICT-PEIRA appointments end?

The FCC held that appointments to the two posts could not continue permanently under a temporary ordinance that had expired. The 2013 Act did not expressly preserve the appointments. Judgment, page 16.

Do Article 264 and Section 6 still protect accrued rights?

Yes. The Court recognised those protections for lawfully acquired rights and acts already done. It rejected using them to give these appointments permanent effect after the ordinance expired. Judgment, page 16.

When was the decision uploaded and what was the result?

The judgment is dated 18 September 2026 and the FCC register records its upload on 4 November. The FCC allowed both appeals, set aside the Islamabad High Court judgments and dismissed the two writ petitions. Judgment, page 17.