In view of the hierarchical character of the judicial system in Pakistan, it is of paramount importance that the law declared by courts should be certain, clear and consistent. Inconsistencies create distrust in the administration of justice. It is an established fact that most decisions of the courts are of significance, not merely, because they constitute adjudication on rights of parties and resolve disputes between them, but a fortiori in doing so they embody a declaration of law, operating as binding principles (stare decisis) in future cases. This latter aspect contains their particular value in developing jurisprudence of law.
This article explains the law of binding precedents vis-à-vis Supreme Court of Pakistan, especially in the backdrop of recent developments where a six-member bench was formed to override the judgement of a three-member bench in a matter involving Article 184(3) of the Constitution of Islamic Republic of Pakistan [“the Constitution”] and orders/dissenting notes in Suo Motu Case No. 1 of 2023.
The stare decisis rule is based on a sound legal principle that justice and certainty require that established legal principles, under which rights may accrue, be recognised and followed. A number of misconceptions and misgivings prevail in Pakistan about the doctrine of binding precedents [stare decisis] that need to be removed and dispelled. Usually it is not recognised that the rule is not merely a judicial theory but is regulated in Pakistan by the command of Constitution and statutory provisions of the Law Reports Act, 1875.
In the Constitution, the doctrine of stare decisis is reflected in Articles 189 and 201, which read as under:
- Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan.
- Subject to Article 189, any decision of a High Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all courts subordinate to it.
Judgments of the Federal Shariat Court, a Service Tribunal, the Appellate Tribunal Inland Revenue [earlier Income Tax Appellate Tribunal] and the National Industrial Relations Commission have the force of precedent which can be inferred from Explanation to section 5 of the Law Reports Act, 1875 which reads as follows:-
“Explanation: For the purpose of this Act the expression, Court or Tribunal includes the Federal Shariat Court, a Service Tribunal, the Income Tax Appellate Tribunal and the National Industrial Relations Commission”.
As evident from above, the doctrine of stare decisis has constitutional and statutory command and thus needs to be implemented in letter and spirit. Any violation of this rule will amount to violation of the Constitution and law of the land.
In the light of above explicit provisions, it can be safely concluded that an important element of our legal system is that the reasoning and decisions found in preceding cases are not simply considered with respect or as good guide, but are BINDING. This is known as the principle of stare rationibus decidendis; popularly referred to as stare decisis. It translates simply as ‘let the decision stand’. Stare rationibus decidendis is the more accurate statement because, it is the reasoning (rationibus) that is the vital binding element in judicial precedent. However, nobody refers to it this way [Learning Legal Rules by James A. Holding & Julian S. Webb, Blackstone Press Limited, U.K. Page 119].
RULINGS OF SUPREME COURT
There is a common misconception that only ratio decidendi is applicable and an obiter dictum is to be ignored while applying judgements of the Supreme Court. The legal sweep of Article 189 of the Constitution takes the situation out of the usual circular limits of ratio decidendi, obiter dictum and casual observations. Once the declaration of law is succinct and clear, any attempt to distinguish decisions on facts or to say factual position is almost impermissible. In Shahid Pervaiz v Ejaz Ahmad and others [2017 SCMR 206], the Supreme Court held as under:
“A fourteen Member Bench of this Court in the case of Justice Khurshid Anwar Bhinder v. Federation of Pakistan (PLD 2010 SC 483), has concluded that where the Supreme Court deliberately and with the intention of settling the law, pronounces upon a question of law, such pronouncement is the law declared by the Supreme Court within the meaning of Article 189 and is binding on all the Courts of Pakistan. It cannot be treated as mere obiter dictum. Even obiter dictum of the Supreme Court, due to high place which the Court holds in the hierarchy in the country enjoy a highly respected position as if it contains a definite expression of the Court’s view on a legal principle, or the meaning of law”.
Declaration of law by the Supreme Court has a binding force as it has a special characteristic as distinct from the strength or weakness of a judicial precedent under the theory of precedents. It is not permissible to bypass decisions of the Supreme Court while observing that the Court was dealing with almost the other side of the coin of a two-sided question [CIT v Autokast Ltd. (1997) 90 Taxman 103 (Ker.)].
Even in respect of a per incuriam judgement of Supreme Court, it is for the Court to declare it so, not for any lower court. A decision is given per incuriam when:
- a court has acted in ignorance of a previous decision of its own;
- or of a court of co-ordinate jurisdiction which covered the case before it in which case it must decide, which case to follow;
- or when it has acted in ignorance of decisions of higher courts, which are binding;
- or when the decision is given in ignorance of the term of a statute or rule having statutory force.
A decision should not be treated per incuriam, however, simply because of a deficiency of parties, or because the court did not have the benefit of best arguments and, as a general rule, the only cases in which decisions should be held to be per incuriam are those given in ignorance of some inconsistent statute or binding authority.
The Supreme Court in Pir Bakhsh v The Chairman Allotment Committee (PLD 1987 SC 145) authoritatively explained the principle of stare decisis:
“There is a distinction in what a case decides generally and as against all the world from what it decides between the parties themselves. Salmond “On Jurisprudence”, Twelfth Edition, at page 175, brings out this distinction in these words:–
“What it decides generally is the ratio decidendi or rule of law for which it is authority; what it decides between the parties includes far more than just this. Since it would be obviously impracticable if there were no end to litigation and if either party to a legal dispute were at liberty to reopen the dispute at any time, the law provides that once a case has been heard and all appeals have been taken (or the time for appeal has gone by) all parties to the dispute and their successors are bound by the Court’s findings on the issues raised between them and on questions of fact and law necessary to the decision of such issues. According to this principle, these matters are now res judicata between them and cannot be the subject of further dispute. But the Court’s findings will not be conclusive except as between the same parties… Third parties not involved in the original case, however, will not be bound, nor will either of the original parties be bound in a subsequent dispute with a third party”.
Elaborating further, it is the policy of the Court to stand by the ratio decidendi, that is, the rule of law and not to disturb a settled point. This policy of the Courts is conveniently termed as the doctrine of rule of stare decisis. The rationale behind this policy is the need to promote certainty, stability, and predictability of law. This, however, does not mean that the rule is inflexible. In this context, it will be advantageous to sum up what Hamoodur Rahman, C.J., in Asma Jilani v Government of the Punjab PLD 1972 SC 139, said:–
“I am not unmindful of the importance of this doctrine but in spite of a Judge’s fondness for the written word and his normal inclination to adhere to prior precedents I cannot fail to recognize that it is equally important to remember that there is need for flexibility in the application of this rule, for law cannot stand still nor can we become mere slaves of precedents….
It will thus be seen that the rule of stare decisis does not apply with the same strictness in criminal, fiscal and constitutional matters where the liberty of the subject is involved or some other grave injustice is likely to occur by strict adherence to the rule”.
Cooley in his treatise “On the Constitutional Limitations”, at page 50 while commenting on accepting adjudged cases as precedents, quotes Chancellor Kent as saying:
“A solemn decision upon a point of law arising in any given case becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the Judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favour of its correctness, and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to the public if precedents were not duly regarded, and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them, and people in general can venture to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has once been deliberately adopted and declared, it ought not to be disturbed unless by a court of appeal or review, and never by the same court, except for very urgent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a perplexing uncertainty as to the law.”
This, in my view, is a very subtle exposition of a precedent being the highest evidence of the law and holds the field so long it is regarded as a good law on the principle of stare decisis”.
Main principles that emerge from the above elaborate judgement of the Supreme Court and many others pronounced by it are:-
- Law laid down by the apex court is binding on all except Supreme Court itself.
- Subordinate Courts/Tribunal/Appellate Authorities cannot ignore even obiter dicta of Supreme Court.
- Legal position as explained by the apex court has to be considered as always in existence. However, in tax matters, on the basis of a later judgment, authorities cannot reopen/revise any assessment that has attained finality. It is an established law that past and closed transactions cannot be disturbed/unsettled unless allowed under the law. The Supreme Court in ITO, Central Circle II, Karachi & Another v Cement Agencies Ltd  20 TAX 1 (S.C. Pak) strongly disapproved the act of disturbing past and closed transactions in the following terms:
“ I do not see how on the basis of the judgement of this in Octavous Steel & Company Ltd’s case past and closed transactions could be reopened…Mr. Nusrat has not been able to refer to any authority which lends support to the course adopted by the Income-tax Officer. A decision given by a High Court in another case cannot be ground for reopening an issue which stood finally determined by a decision of a subordinate Court or authority”.
SUPREME COURT IS NOT SLAVE OF ITS OWN JUDGEMENTS
The principle of stare decisis does not apply to Supreme Court as explained in Shahid Pervaiz v Ejaz Ahmad and others 2017 SCMR 206 as under:
“This Court in the case of Hitachi Limited v Rupali Polyester (1998 SCMR 1618), has concluded that the Supreme Court is not a slave of doctrine of stare decisis and can change or modify its view with the passage of time. All the courts and public institutions are bound to follow the principles laid down by this Court. No exception to this principle can be created under the garb of rule or procedural niceties”.
It is a settled law that if there is a conflict between two decisions of the Supreme Court, the decision of the larger bench will prevail—CIT v Trilok Nath Mehrota  98 Taxman 462 (SC)/ 231 ITR 278. However, where there is conflict between ratio decidendi and obiter dicta of Supreme Court, obiter will not be binding—CIT v Smt. T.P. Sidhwa  133 ITR 840 (Bom.).
The doctrine that a larger bench of Supreme Court has more authoritative force than a smaller bench is only relevant as between cases which yield different ratio decidendi, and not where one hands down a decision and other merely lays down dictum—Ghansham Singh v CIT  141 ITR 601 (Mad).
Keeping all the above in mind, it is necessary to see what was the judgement in three-member bench in Suo Moto Case No. 4 of 2022 [Grant of additional 20 marks to Hafiz-e-Quran while admission in MBBS/BDS under regulation 9(9) of the MBBS and BDS (Admission House Job and Internship) Regulations, 2018]. In this case taken up under Article 184(3) of the Constitution, it was held by Justice Qazi Faez Isa:
“26. With regard to article 184(3) of the Constitution there are three categories of cases. Firstly, when a formal application seeking enforcement of Fundamental Rights is filed. Secondly, when (suo moto) notice is taken by the Supreme Court or its Judges. And, thirdly cases of immense constitutional importance and significance (which may also be those in the first and second category). Order XXV of the Rules only attends to the first category of cases. There is no procedure prescribed for the second and third category of cases. The situation is exacerbated as there is no appeal against a decision under Article 184(3) of the Constitution. The Rules also do not provide how to attend to the following matters: (a) how such cases be listed for hearing, (b) how bench/benches to hear such cases be constituted and (c) how Judges hearing them are selected.
- The Supreme Court is empowered to make makes rules attending to the aforesaid matters. The Supreme Court comprises of the Chief Justice and all Judges. The Constitution does not grant to the Chief Justice unilateral and arbitrary power to decide the above matters. With respect, the Chief Justice cannot substitute his personal wisdom with that of the Constitution. Collective determination by the Chief Justice and the Judges of the Supreme Court can also not be assumed by an individual, albeit the Chief Justice.
- The interest of citizens therefore will be best served to postpone the hearing of this case, and of all other cases under article 184(3) of the Constitution, till the matters noted hereinabove are first attended to by making requisite rules in terms of article 191 of the Constitution.
- In view of the public importance of this matter, and as it attends to citizens’ fundamental rights, this order will also be translated into the National language of Pakistan, which is Urdu, however, the English version will be treated as official”.
The above order dated March 29, 2023 was placed on the website of Supreme Court along with Urdu translation. One member of the bench [Justice Shahid Waheed] disagreed with the judgement, while Justice Amin-ud-Din Khan agreed with the author of the order.
Justice Shahid Waheed wrote: “As the points raised and discussed in the order were not the subject matter of the case, I disagree and will record separate dissenting note”. Later, a separate dissenting note dated March 30, 2023 was issued and uploaded on the website of Supreme Court. In the said note, it was mentioned:“I have read the order (“the order”) proposed in this case. I regret greatly that I find myself in disagreement with my learned brethren.
- The first point to be examined is whether the objection to the constitution of this Bench could be brought under consideration in this case. I think it cannot for two reasons. One, a Bench, special or regular, is constituted by an administrative order of the Hon’ble Chief Justice, and as such, the present Bench in conformity with the principle settled in Suo Moto Case No. 4 of 2021 (PLD 2022 SC 306), has been lawfully constituted to hear this case. It is to be noted that judgment in the Suo Moto Case No.4 of 2021 is of a Five-Member Bench and thus, takes precedence over all precedents of this Court regarding the power of the Hon’ble Chief Justice to constitute any kind of Benches. It appears that for this reason neither the Attorney General for Pakistan nor the PMDC’s lawyer had any objection to the constitution of this Bench. Given these circumstances, in my humble view, none of the Judges of this Bench can object to the constitution of the Bench, and if they do so, their status immediately becomes that of the complainant, and consequently, it would not be appropriate for them to hear this case and pass any kind of order thereon. This reasoning has the backing of the basic code of judicial ethics, to wit, no man can be a Judge in their own cause. It is important to state here that this principle confines not merely to the cause where the Judge is an actual party to a case, but also applies to a case in which he has an interest.
Forbye, judicial propriety requires that if any Judge of the Bench has any objection, the proper course for him is either to recuse himself from the Bench or to refer the matter to the Hon’ble Chief Justice with the concurrence of other Judges of the Bench, so that the case is assigned to some other Bench. Two, the administrative order of the Hon’ble Chief Justice regarding the constitution of the Bench becomes fait accompli when a Judge in compliance thereof starts hearing the case. Hence, any Member of this Bench, after having accepted the administrative order of the Hon’ble Chief Justice, is estopped to question the constitution of the Bench on the well known doctrine of estoppel”.
The order of Justice Qazi Faez Isa in Suo Moto Case No. 4 of 2022 and earlier dissenting note of Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail in Suo Moto Case No.1 of 2023 purportedly inspired the alliance government of (PDM) to table in National Assembly, the Supreme Court (Practice and Procedure) Bill, 2023. National Assembly after some amendments and Senate passed it in utter haste.
The President of Pakistan on April 8, 2023 returned the Supreme Court (Practice and Procedure) Act, 2023 pointing out some shortcomings. It will now be passed again by both houses in a joint session and after passage and presentation to President would become law of the land within 10 days as envisaged under Article 75(2) of the Constitution. Whether this law can stand, the test of appeal in Supreme Court under Article 184(3) only time will tell, once it receives the assent by the President and someone challenges it.
The entire exercise by the PDM government of amending Article 184(3) started in the wake of 28-page, two-member dissenting order in Suo Moto Case No.1 of 2023, authored by Justice Syed Mansoor Ali Shah. It reads (excerpts) as under:
We had serious reservations on the mode and manner how the original jurisdiction of this Court under Article 184(3) was invoked suo motu in the present matter as well as on the constitution of the nine-member Bench, which we expressed in our orders dated 23.02.202316 and the details thereof need not be reiterated here.
On the first date of hearing, i.e., 23.02.2023, at the very outset one of us (Jamal Khan Mandokhail, J.) read a note in Court expressing his opinion that the present suo motu proceedings were not justified. Two Hon’ble Judges of the nine-member Bench (Yahya Afridi and Athar Minallah, JJ.) dismissed the suo motu proceedings as well as the connected constitution petitions, by their orders dated 23.02.2023, inter alia holding:
While the jurisdiction of this Court under Article 184(3) of the Constitution is an independent original jurisdiction that is not affected by the pendency of any matter on the same subject matter before any other court or forum, the decision already rendered by the Lahore High Court in Writ Petition No.6093/2023, pending challenge in Intra-Court Appeal No.11096 of 2023, and the peculiarly charged and unflinching contested political stances taken by the parties, warrant this Court to show judicial restraint to bolster the principle of propriety. This is to avoid any adverse reflection on this Court’s judicial pre-emptive eagerness to decide.
Thus, the principles enunciated in Manzoor Elahi and explained in Benazir Bhutto as to the nature and scope of the original jurisdiction of this Court under Article 184(3) of the Constitution is the law of the land till today, which should therefore be applied and followed by this Court unless a Bench of this Court larger than an 11-member Bench overrules the same.
Res judicata applies only when the same parties, or their privies, are involved in the subsequent case as were involved in the prior case, the applicability of stare decisis is not affected by the fact that the parties to the subsequent case were not involved in the prior case wherein the question of law was decided. The basis of the doctrine of stare decisis is the need to promote certainty, stability and predictability of the law while that of the doctrine of res judicata is the need to have an end of the litigation over a dispute between the parties. Stare decisis is, thus, applicable only to questions of law; res judicata applies to decisions on both questions of law and fact. Res judicata is strictly applicable even where the decision on the questions of law or fact and the consequent adjudication on the respective claims of the parties were erroneous, whereas stare decisis has a certain flexibility and does not prevent a court from overruling its prior decision if, upon re-examination thereof, it is convinced that the decision was erroneous.
The very essence of the political system is to rectify such disagreements, but to take this key characteristic outside the realm of our political system and transfer it to the judiciary, threatens the very core of democratic choice – raison d’etre’ of democracy. We must also remain cognisant that there will always be crucial events in the life of a nation, where the political system may disappoint, but this cannot lead to the conclusion that the judiciary will provide a better recourse.’ A democratic political process, however that may be, is best suited to resolve such matters.
We believed that our decision concurring with the decision of our learned brothers (Yahya Afridi and Athar Minallah, JJ.) in dismissing the present suo motu proceedings and the connected constitution petitions, had become the Order of the Court by a majority of 4-3 while our other three learned brothers held the view that their order was the Order of the Court by a majority of 3-2. Because of this difference of opinion, the Order of the Court, which is ordinarily formulated by the head of the Bench could not be issued. We are of the considered view that our decision concurring with the decision of our learned brothers (Yahya Afridi and Athar Minallah, JJ.) in dismissing the present suo motu proceedings and the connected constitution petitions is the Order of the Court with a majority of 4 to 3, binding upon all the concerned. The answer lies in understanding the administrative powers enjoyed by the Hon’ble Chief Justice in reconstituting a Bench, when the Bench once constituted and assigned a case has commenced hearing of a case. This court has held in H.R.C. No.14959-K of 2018,37 that “once the bench is constituted, cause list is issued and the bench starts hearing the cases, the matter regarding constitution of the bench goes outside the pale of administrative powers of the Chief Justice and rest on the judicial side, with the bench , with the bench. Any member of the bench may, however, recuse to hear a case for personal reasons or may not be available to sit on the bench due to prior commitments or due to illness. The bench may also be reconstituted if it is against the Rules and requires a three-member bench instead of two. In such eventualities the bench passes an order to place the matter before the Chief Justice to nominate a new bench. Therefore, once a bench has been constituted, cause list issued and the bench is assembled for hearing cases, the Chief Justice cannot reconstitute the bench, except in the manner discussed above.”
One-man show leads to the concentration of power in the hands of one individual, making the system more susceptible to the abuse of power. In contrast, a collegial system with checks and balances helps prevent the abuse and mistakes in the exercise of power and promote the transparency and accountability. When one person has too much power, there is a risk that the institution may become autocratic and insulated, resulting in one-man policies being pursued, which may have a tendency of going against the rights and interests of the people. We must not forget that our institution draws its strength from public perception.
The discretion of the Chief Justice needs to be structured through rules. This Court has held that structuring discretion means regularizing it, organizing it and producing order in it, which helps achieve transparency, consistency and equal treatment in decision-making—the hallmarks of the rule of law. The seven instruments that are usually described as useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents, and fair procedure. Our jurisprudence must first be applied at home.
An objective criterion prevents a Judge from choosing his cases and the parties from choosing their Judge. The said right is rooted and enshrined in our jurisdiction in the fundamental rights of access to justice through an independent and impartial court, fair trial and equality before law guaranteed by Articles 9, 10A and 25 of the Constitution. The right to be treated in accordance with law conferred by Article 4 of the Constitution also embodies this right, as the rule of law mandated by Article 4 assumes the existence of laws that are known to those who or whose matters are to be treated in accordance therewith.
The elaborate dissenting note by Justice Syed Mansoor Ali Shah is an illuminating piece of writing by a brilliant jurist. Indeed, reforms are necessary for dispensation of justice as a whole and one cannot undermine the importance of regulating discretion under any law by rules/regulations. It is for all the judges to sit together, make new rules, and revisit the existing ones under Article 191 of the Constitution to structure jurisdiction under article 184(3) of the Constitution. As regards the controversy of 4 to 3 or 3 to 2, it can only be settled by the honourable judges of the Supreme Court who were members of the bench.
The detailed judgement by Justice Athar Minallah, placed on the website of Supreme Court on April 7, 2023 and widely covered by print/electronic/social media emphasised some of the above points and resolution of political questions at appropriate forum. Strangely, there is no mention of impact of earlier order by all judges giving authority to CJP for the reconstitution of the bench. In addition, it is questionable as to how later developments were made part of the detailed order that according to own admission contains “the reasons in support of orders dated 23.02.2023 and 24.02.2023 respectively, whereby the petitions and the assumption of suo motu jurisdiction were dismissed…”
There is need to examine the judgment of two-member bench in Suo Moto Case No. 4 of 2022 and principle of stare decisis vis-à-vis the ratio settled in Suo Moto Case No. 4 of 2021 (PLD 2022 SC 306) by the five-member bench regarding power of the Chief Justice of Pakistan (CJP) to constitute the benches.
As mentioned earlier, judges of Supreme Court are not slaves of their earlier judgements. Hence, the passing of order in Suo Moto Case No. 4 of 2022 deviating from five-member bench PLD 2022 SC 306 was within the principle of stare decisis applicable to Supreme Court. Quite strangely, this order was first attacked by an executive order issued by the Registrar of the Supreme Court on the instructions of CJP. After the author of the order retorted as to how a judicial order could be suspended/overruled by an executive order, a six-member bench was constituted by CJP. It overruled judgement in Suo Moto Case No. 4 of 2022 on April 4, 2022 [the same day when the Supreme Court declared action of Election Commission of Pakistan unconstitutional in Constitutional Petition 5 of 2023]. The six-member bench passed the order on April 4, 2022, uploaded on the website of Supreme Court the same day. It says:
“….We have carefully examined the majority judgment as well as the dissent recorded by Shahid Waheed, J. We are in no manner of doubt that the order dated 15.03.2023 invokes suo motu jurisdiction of this Court and is therefore clearly violative of the principles settled in a five member judgment of this Court recorded in SMC No.4 of 2021 reported as Enforcement of Fundamental Rights with regard to Independence of Press/Media (PLD 2022 SC 306) which clearly and categorically lays down the rule that the suo motu jurisdiction of this Court can only and solely be invoked by the HCJP. The majority order also appears to be in violation of the well settled rule of law, which is axiomatic, that the Chief Justice is the master of the roster. The order was therefore both without and beyond jurisdiction. Therefore, we are respectfully of the view that the order dated 15.03.2023 passed by two Hon’ble members of the Bench was inoperative and ineffective when made, was such at all times thereafter and continues to remain so.
It appears that the order was brought to the notice of the HCJP who was pleased to observe as follows:
“The observations made in paras 11 to 22 and 26 to 28 of the majority judgment of two to one travel beyond the lis before the Court and invokes its suo motu jurisdiction.
The unilateral assumption of judicial power in such a manner violates the rule laid down by a 5 Member judgment of this Court reported as Enforcement of Fundamental Rights with regard to Independence of Press/Media (PLD 2022 SC 306).
Such power is to be invoked by the Chief Justice on the recommendation of an Hon’ble Judge or a learned Bench of the Court on the basis of criteria laid down in Article 184(3) of the Constitution.
The said majority judgment therefore disregards binding law laid down by a larger bench of the Court.
Any observation made in the said judgment, inter alia, for the fixation or otherwise of cases is to be disregarded. Accordingly, a circular be issued by the Registrar stating the forgoing legal position for the information of all concerned.”
Accordingly, the Registrar of this Court issued a Circular dated 31.03.2023 with copies endorsed to all concerned. On perusal of the circular in question, we are of the view that the observations made by the HCJP are unexceptionable and simply rectify an unwarranted assumption of jurisdiction and intrusion into, and interference with, powers that the principles laid down in the case law place firmly in the hands of the Chief Justice alone. We accordingly affirm the observations of the HCJP as incorporated in the Circular and the directions issued therein. In view of the foregoing, the interim order dated 15.03.2023 (released on 29.03.2023) is recalled”.
The question is whether there was any need for specifically endorsing the Circular of March 31, 2023 by the six-member bench in the light of earlier decision [PLD 2022 SC 306] of Supreme Court by five-member bench while adjudicating the matter on merit. It is already well-established that if there is a conflict between two decisions of the Supreme Court, decision of the larger bench will prevail. Thus in any case, if there is was a conflict between PLD 2022 SC 306 [five-member judgement] and judgement of the Supreme Court in Suo Moto Case No.4 of 2022 [three-member judgement with majority decision by 2 to one] that of larger bench would prevail.
A closer look, however, shows that at least one issue raised in judgement given in Suo Moto Case No.4 of 2022 is not exactly the same as settled in Suo Moto Case No. 4 of 2021 (PLD 2022 SC 306). The five-member bench held as under:
“53. While the question before us has been addressed, there is nonetheless something additional that we would like to say. The suo motu invoking of the jurisdiction of the Court under Article 184(3) has, over the years, come in for its share of analysis, debate, discussion and, indeed, criticism. It must be acknowledged that this is not something confined just to the Bar but extends to the Bench also. That the jurisdiction can be so invoked cannot now be gainsaid. But the time has come to recognize that there is a certain imbalance, which ought to be corrected. The imbalance lies in what has been called the “fourth element” above, i.e., the link or bridge between the invoking of the jurisdiction and the exercise of it. As has been explained above, law and practice require that the suo motu invoking of the jurisdiction lie solely with the Chief Justice. As also seen the law mandates that the constitution of Benches for the exercise of the jurisdiction lies with the Chief Justice alone. It is this that creates an imbalance, and we need not dwell on whether this is a matter of perception only, or both perception and reality. Either way it is something that, it must be fairly conceded, ought to be addressed.
- How is the balance to be achieved? To this different answers can be given. However, the one that seems to us to be most readily capable of application is for a suitable practice to develop and crystallize in relation to the “fourth element”. Since both the suo motu invocation of the jurisdiction and the constitution of a Bench to exercise that jurisdiction lie in the same hands, it is for those hands, in our respectful view, to act in a manner that dispels any perception of the imbalance”.
In Suo Moto Case No.4 of 2022, the specific issue raised is:
“Order XXV of the Rules only attends to the first category of cases. There is no procedure prescribed for the second and third category of cases. The situation is exacerbated as there is no appeal against a decision under Article 184(3) of the Constitution. The Rules also do not provide how to attend to the following matters: (a) how such cases be listed for hearing, (b) how bench/benches to hear such cases be constituted and (c) how Judges hearing them are selected”.
It is thus clear that in the above-cited part of the judgement in Suo Moto Case No.4 of 2022, a shortcoming was pointed out in Order XXV of the Supreme Court Rules, 1980 that was not the subject matter of five-member judgement in Suo Moto Case No. 4 of 2021(PLD 2022 SC 306).
On April 8, 2023, Justice Qazi Faez Isa, the senior puisne judge, issued a detailed note [regarding Suo Moto Case No. 4 of 2022] placed on the website of Supreme Court in Urdu as well [later both versions removed for website]. It concluded as under:
“Since the gathering in a court of six distinguished judges was not permissible under the Constitution or under any law, the Supreme Court’s order dated 29 March 2023 passed in Case No. 4 could not have been set aside by the 4 April Note. Decisions emanating from a courtroom overcast with the shadow of autocracy cannot displace the Constitution”.
The doctrine that a larger bench of Supreme Court has more authoritative force than a smaller bench is well-established, but it is not strictly applicable in the present controversy, in the light of facts cited above. As far as administrative authority of the CJP to constitute benches is concerned, the binding authority is judgement in Suo Moto Case No. 4 of 2021 (PLD 2022 SC 306).. However, for a particular issue raised in the judgemnet (now overruled by six-member bench) in Suo Moto Case No.4 of 2022 that Order XXV is deficient there was/is no binding precedent of the Supreme Court. Hence, to this extent latest order of six-member bench as well provides no answer.
In view of above, it can safely be concluded that although media has created a big hype and politicians as usual are not applying their independent minds, if they have ones, yet in reality there is much ado about nothing (“something”?). The issue is of sincere disagreement among the honourable judges (brothers) and rule of stare decisis will ultimately take care of it. The house is divided on intellectual lines. It is not at all politically divided as is wrongly portrayed and attributed. Undoubtedly and unfortunately, non-professionals, the so-called, all-knowing anchors, conduct debates in the media and create a lot of confusion, though none of them is aware about the principle of stare decisis. It would have been better that such programmes were hosted by trained and experienced lawyers and/or retired judges. In future, media may consider this suggestion so that the nation can be properly informed.
Dr. Ikramul Haq, Advocate Supreme Court, specialises in constitutional, corporate, media and cyber laws, ML/CFT, IT, intellectual property, arbitration and international taxation. He holds LLD in tax laws with specialization in transfer pricing. He was full-time journalist from 1979 to 1984 with Viewpoint and Dawn. He served Civil Services of Pakistan from 1984 to 1996. He established Huzaima & Ikram in 1996 and is presently its chief partner as well as partner in Huzaima Ikram & Ijaz. He studied journalism, English literature and law. He is Chief Editor of Taxation. He is country editor and correspondent of International Bureau of Fiscal Documentation (IBFD) and member of International Fiscal Association (IFA). He is Visiting Faculty at Lahore University of Management Sciences (LUMS) and member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE).
He has coauthored with Huzaima Bukhari many books that include Tax Reforms in Pakistan: Historic & Critical Review, Towards Flat, Low-rate, Broad and Predictable Taxes (revised & Expanded Edition, Pakistan: Enigma of Taxation, Towards Flat, Low-rate, Broad and Predictable Taxes (revised/enlarged edition of December 2020), Law & Practice of Income Tax, Law , Practice of Sales Tax, Law and Practice of Corporate Law, Law & Practice of Federal Excise, Law & Practice of Sales Tax on Services, Federal Tax Laws of Pakistan, Provincial Tax Laws, Practical Handbook of Income Tax, Tax Laws of Pakistan, Principles of Income Tax with Glossary and Master Tax Guide, Income Tax Digest 1886-2011 (with judicial analysis).
The recent publication, coauthored with Abdul Rauf Shakoori and Huzaima Bukhari is Pakistan Tackling FATF: Challenges & Solutions
He is author of Commentary on Avoidance of Double Taxation Agreements signed by Pakistan, Pakistan: From Hash to Heroin, its sequel Pakistan: Drug-trap to Debt-trap and Practical Handbook of Income Tax. He regularly writes columns for many Pakistani newspapers and international journals and has contributed over 2500 articles on a variety of issues of public interest, printed in various journals, magazines and newspapers at home and abroad.
Abdul Rauf Shakoori, Advocate High Court, is a subject-matter expert on AML-CFT, Compliance, Cyber Crime and Risk Management. He has been providing AML-CFT advisory and training services to financial institutions (banks, DNFBPs, investment companies, money service businesses, insurance companies and securities), government institutions including law enforcement agencies located in North America (USA & CANADA), Middle East and Pakistan. His areas of expertise include legal, strategic planning, cross border transactions including but not limited to joint ventures (JVs), mergers & acquisitions (M&A), takeovers, privatizations, overseas expansions, USA Patriot Act, Banking Secrecy Act, Office of Foreign Assets Control (OFAC).