Huzaima Bukhari & Dr. Ikramul Haq
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 a binding principle (stare decisis) in future cases. In this latter aspect lies their particular value in developing the jurisprudence of law.
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] which need to be removed and dispelled. Usually it is not recognised that the rule is not merely a judicial theory but is regulated by the command of Constitution and statutory provisions of the Law Reports Act, 1875.
In Constitution of Pakistan, the doctrine of stare decisis is reflected in Article 189 and 201, which reads as under:
“189. 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.“
“201. 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 Income Tax Appellate Tribunal [now renamed as Appellate Tribunal Inland Revenue] 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.
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 apex court. The legal sweep of Article 189 of the Constitution of Pakistan takes the situation out of the usual circular limits of ratio decidendi, obiter dictum and casual observations. Once the declaration of law that includes obiter dictum is succinct and clear, any attempt to distinguish decisions on facts or to say factual position is almost impermissible as explained in Shahid Pervaiz v Ejaz Ahmad and others 2017 SCMR 206 by the Supreme Court of Pakistan.
A 14-Member Bench of Supreme Court in Justice Khurshid Anwar Bhinder v. Federation of Pakistan (PLD 2010 SC 483) 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. It further held that even obiter dictum 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 apex court has a binding force and in that regard the position has a special characteristic as distinct from the strength or weakness of a judicial precedent under the theory of law of precedents. It is, therefore clear that it is not permissible to bypass decisions of Supreme Court under any pretext, even where no reason is recorded for dismissal or acceptance.
Main principles that emerge from the above is that law laid down by the apex court is binding on all except itself and that all subordinate Courts/Tribunal/Appellate Authorities cannot ignore even its obiter dicta.
BINDING PRINCIPLES FOR HIGH COURTS
Under Article 201 of Constitution subject to Article 189 any decision of 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 and where there are conflict of views between two High Court Courts, the subordinate Courts have to follow the view taken by High Court of that province”—Brown Gymkhana through President v Al-Rehman Hospital through Managing Partner and others PLD 2009 Quetta 21 [Page 32, Para 7]. “So far the proposition of law relating to the binding effect of the precedent is concerned, there can be no cavil to it. If there is difference of opinion between the two High Courts, all the subordinate Courts including the Benches of the Income Tax Appellate Tribunal are required to follow the view taken by the High Court within whose jurisdiction they are working”—Altas Investment Bank v CIT 2005 PTD 2586 [High Court Karachi).
In federal statutes e.g. tax matters, a lot of confusion prevails regarding binding force of judgements of High Courts of territorial jurisdiction. Though it is queer, it is bound to happen in a federation like Pakistan that federal statutes like Income Tax, Sales Tax, Federal Excise and Customs Act are employed differently in all four provinces on account of varying interpretation by their respective High Courts. This can be obviated only if cases involving divergent views are decided out of turn by the Supreme Court. Serious thought and efforts are required to devise a method to achieve unanimity on the provisions of a federal tax statute.
In terms of Article 201 of the Constitution of 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. In other words, the binding authority of High Court does not extend beyond its territorial jurisdiction.
The decision of one High Court is not binding precedent for other High Courts. However, in case of federal statutes if only one judgement of a High Court is available then all adjudication and appellate authorities, including those working outside the territorial jurisdiction of the said Court, are bound to follow the said judgement [Atlas Bank v CIT etc 2005 PTD 2586 (High Court Karachi).
However, the above principle will not apply if there are conflicting judgements of two High Courts in existence. In such a case even Appellate Tribunal Inland Revenue (ATIR) and Federal Customs Tribunal, although enjoying all-Pakistan jurisdiction, are bound to follow the law of precedent within the area, which is coterminous with that of the territorial jurisdiction of the High Courtover the situs of the Adjudication Officer/Appellate forum because a taxpayer assessed in Karachi cannot file reference application in Lahore High Court to take advantage of some favourable judgment therefrom on the plea that ATIR and Customs Tribunal enjoy all-Pakistan jurisdiction.
Likewise, ATIR or Federal Customs Tribunal while deciding any particular law point must keep in view the binding precedent of the High Court, which exercises territorial jurisdiction over the situs of the adjudication officer who passed the order. The same principle will apply to other Tribunals as well that are working in all provinces and dealing with federal statutes.
The writers, lawyers, writers and partners of Huzaima, Ikram & Ijaz, are Adjunct Faculty at Lahore University of Management Sciences (LUMS), members Advisory Board and Visiting Senior Fellows of Pakistan Institute of Development Economics (PIDE).