Daily Times

The recent judicial activism being displayed by the apex court in Pakistan is much cherished; yet it comes with an exorbitant price of uncertainty and unpredictability due to ignorance of Stare decisis (to stand by things decided).

It is without denying that judicial law making is a task entrusted to judicial officers in common law jurisdictions but within the strictures of cautiousness due to a democratic deficit. Therefore the shackles of binding precedent, bind the judicature of Common Law systems to ensure that public and officials can fashion their conduct according to the law of the land. The same principle is enshrined under Article 189 of the 1973 Constitution of Pakistan i.e. decisions of the Supreme Court binds all subordinate Courts, however, in terms of horizontal precedent, the Supreme Court is not bound by its own decision as it has the ultimate responsibility of interpreting the law of the land. But this power is to be used very prudently and “with hesitation and only in very exceptional circumstances.” (PLD 1962 SC 335).

Article 189 depicts the historical practice statement of 1966 made by the House of Lords in England, which overruled the practice of horizontal precedent of the House, which was a previously established rule in London Street Tramways Ltd versus London County Council [1898] AC 375 i.e. the House of Lords which was the highest judicial forum of England and Wales was bound by its own previous decision.

Starting with the verdict of the Supreme Court in the Panama case, the former PM was disqualified under both section 99(f) of ROPA and article 62(1)(f) of the Constitution of Pakistan, because he withheld information about his assets in his nomination papers for the 2013 general elections

The reason for this was to bring finality to cases and legal issues so that they would not be continually re-argued. However, in order to make the law more flexible and reach more just results, the House after 68 years changed this rule in the ‘The Practice Statement’ (Judicial Precedent) [1966] 3 All ER 77, which states; “Their Lordships recognize … that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions … as normally binding, to depart from a previous decision when it appears right to do so.”

Though the House of Lords allowed itself to depart from its previous decisions, nevertheless, it’s highly unlikely that they do so. Even if a particular case leads to an absurd result, the house adopted what is known as the ‘cautious approach’ i.e. not to depart from its previous decision. In KnullervDPP [1973] AC 435, Lord Reid categorically stated: ‘However wrong or anomalous a decision may be it must stand … unless or until it is altered by the Parliament’. The same approach is followed today by the UK Supreme Court, thus making the law certain and therefore effective.

Unfortunately, the same cautious approach is diminished today in our Judicial System. The inconsistency in decisions of the Apex Court and the High Court is obvious in the interpretation of article 62(1)(f). Starting with the verdict of the Supreme Court in the Panama case, the former PM was disqualified under both section 99(f) of ROPA and article 62(1)(f) of the Constitution of Pakistan, due to concealment of assets in his nomination papers in the 2013 general elections. Thus the rule that concealment of assets amounts to application 62(1)(f), stands as binding law and thus is ought to be followed in both horizontal and vertical precedent.

When a similar case was filed against the then Defence Minister Khawaja Muhammad Asif, the special three member bench of Islamabad High Court followed the principle of Panama verdict and declared Khawaja Asif disqualified under article 62(1) (f) on the basis that he also received salary for working and holding Iqama in UAE, which he didn’t declare in his nomination papers. In the review petition filed by the disqualified Minister, the three-member bench of the Supreme Court set aside the verdict of Islamabad High Court, this perhaps was distinguished from the Panama case which stood as a binding authority, as the decision was passed by a five member bench some time earlier based on similar facts. In one of the hearings, Justice Umer Atta, who was heading the bench, stated that ‘The court would avoid destroying the career of a parliamentarian merely because he failed to quantify his assets though he disclosed their source under the relevant law’. This Judgment is inconsistent with the previous well-established rule in the Panama case decided by a five-member bench.

The dilemma of uncertainty is not only faced by litigants and lawyers, but also by the bench of the Supreme Court itself. The most recent judgment in the case titled Malik Shakeel Awan versus Sheikh Rasheed Ahmad paints a clear picture of this perception. Though the majority judgment, authored by Justice Azmat Saeed, ruled in favour of the appellant Sheikh Rasheed, it is the 27 page dissenting note of Justice QaziFaez Isa which underlines the aforementioned paradox. In his Dissenting note, Justice Isa wrote, “Justice must not only be done, but be seen to be done as well. Every endeavour, therefore, should be made to resolve the prevailing legal uncertainty. The eligibility of members of parliament should be decided in accordance with one single and definite measure…”

He further left seven important questions in relation to article 62(1)(f) and 184(3) of the Constitution which should be addressed once and for all by the full bench of the Supreme Court for eradicating disparities, which his Lordship had highlighted in several cases which have come before the Supreme Court. Justice Isa further highlighted a very serious concern; “It would not be fair to one or the other of the contesting parties herein if we decide this case at this stage because in doing so we would be preferring one set of views to another and not on the basis of a clear declaration of law, which is bound to give rise to misgivings. It is therefore all the more necessary that the questions, which have arisen, be thoroughly examined and answered.”

If this inconsistency in law is not addressed instantly, sooner or later mistrust is bound to arise in litigants and accusation of biasness will be raised, making the whole system less effective. The Supreme Court according to law can depart from its own decision, after all it’s the highest forum to provide justice and interpret the law, but it still needs to adhere to the basic rule of stare decisis et non quieta movere(to stand by decisions and not to disturb settled matters).

Justice Cardozo provides the best equilibrium between predictability and flexibility in the following words which can diminish this penumbra of uncertainty; “[The Judge Should] draw his inspiration from consecrated principles, he is not to yield to spasmodic sentiment, to vague and unregulated benevolence, [but must] exercise a discretion tempered by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life.”

The writer is an Islamabad-based lawyer. He has a Masters in Law from University of California, Berkeley. He can be contacted at ahmadwaqas91@berkeley.edu

Published in Daily Times, July 6^th 2018.