No doubt decision making has always been considered a difficult task, not only because it puts to test analytical & judgment abilities of the decision maker but also it always comes with the fear of repercussions. Decisions can be good or bad, a common practice is to measure the quality of decision to its outcome. If decisions with adverse impacts are passed then they are questioned by superiors in order to determine the extent and the quantum of error, to trace elements of bona fide or mala fide, fixation of liability and to undo or minimize the consequences. The probe requires finding answers to the paramount questions that whether the decision is tainted with mala fide intent or the maker took the decision in good faith but erred and what were the circumstances under which such decision was taken. Where a decision which brought undesired results was adjudged as unjust but the same was found to be taken in good faith, the jurisprudence calls it an ‘Error of Judgment’.
Contrary to the difficulties faced by others in the decision making process, the judiciary is bestowed with a relatively conducive mechanism to deliver judgments. In our judicial system successive appeals before superior courts have been provided to counter possibilities of mistakenly committing an error of judgment by the judges. Thereto despite the fact that a judge, not being a lay man, is provided with adequate periodic departmental trainings to correctly adjudge, he is assisted by lawyers from both sides at length which reduces the chances of misreading of a record placed before him and they apprise the court with the case laws/precedents set by superior courts on the subject, he has adequate time to ponder and for this purpose he can reserve a judgment for even months to make up his mind. He is supposed to undertake decisions involving everyday substantive laws, as concrete procedures which are not new but rather have developed over decades as most of the cases are like the Code of Criminal Procedure of year 1898, Code of Civil Procedure of 1908, Specific Relief Act of 1877, Contract Act of 1872, Evidence Act of 1872 (renamed as Qanoon-e-Shahadat Order with minute changes in 1984) and other statutes of similar age. Lastly, ‘jurisprudence’ also known as grammar of law contains nothing new yet an error of judgment occurs which is dealt by providing successive appeals. Furthermore, with an objective to completely erase the possibility of an error of judgment, the number of judges at appellate stage are also increased i.e. from single bench to division bench and thereafter, to a three to five member bench at the further appellate stage, depending upon the nature of the case.
If there is an ambiguity or deviation found in the principles of natural justice which is in contrast with the constitutional provisions, the supreme court will strike down its own earlier view. By doing so our superior courts have otherwise acknowledged and established that though an error of judgment can be minimized yet its presence even at the final appellate stage cannot be ruled out altogether
Despite the above stated very cautiously designed measures, Pakistani judicial history has witnessed dozens of instances where the august court had to sit as a court of appeal over its very own judgments though such judgments were delivered by them in the original appellate jurisdiction after the exhaustion of all available appellate remedies by the courts below. However, if there is an ambiguity or deviation found in the principles of natural justice which is in contrast with the constitutional provisions, the supreme court will strike down its own earlier view. By doing so our superior courts have otherwise acknowledged and established that though an error of judgment can be minimized yet its presence even at the final appellate stage cannot be ruled out altogether.
Contrary to what has been stated above, the recognized phenomena of error of judgment and its curbing measures, both stands completely defeated when a controversy is adjudged by the highest court, either on its own motion which is known as Suo Moto jurisdiction or under its constitutional jurisdiction under the ambit of ‘public importance’ or ‘fundamental rights’; as a court of simultaneously first and last instance with no right vested with the aggrieved for preferring any appeal or review and thus findings against the aggrieved attain finality for all times to come. Keeping aside political cases & grievances of individuals, the consequences of the first and final judgments can be best examined from Reko Diq mining & Karake rental power cases whereby Pakistan has been slapped with fine of billions of dollars by international arbitrators against cancellation of these agreements by courts, despite the presence of an ouster clause in such protected agreements. The assumption that courts of the highest order cannot err since they firmly hold the scale negates the entire jurisprudence and the rationale behind the existence of appellate structure.
In our judicial system defective decision(s) are declared the outcome of ‘error of judgment’ by the appellate court which absolves the judge from any liability or consequences there of, he enjoys complete immunity in this context. Similarly the executive is also promised identical immunity against acts resulting in an error of judgment though done in ‘good faith’, almost every statue absolves the executive from repercussions and the consequences for acts done in good faith. But this corresponding immunity which is available to the former organ of the state is now no more available to the latter organ, whereby the public functionaries of the executive especially the elected ones are being not only prosecuted but are also made to pay personally for the damage incurred for any undesirable outcome in contracts awarded, agreements entered, allocations granted and appointments made by them, without determining the quantum of good faith.
In some circumstances, the legislation badly needs to reinforce long standing, time tested and globally recognized remedial measures meant to minimize the element of an error of judgment and revisit article 185 of the constitution pertaining to the appellate jurisdiction of the Supreme Court. Legislation against infringement of right to appeal keeping in view the phenomena of error of judgment which is duly recognized by none other than the judicature itself and to provide sanctity, strength and a binding nature to the appellate provisions of ‘Supreme Court Rules’ by incorporating them in the constitution.
The writer is an Advocate
Published in Daily Times, January 12th 2019.