Supreme Court’s per incuriam judgement
Huzaima Bukhari & Dr. Ikramul Haq
In view of the hierarchical character of judicial system in Pakistan, it is of paramount importance that the law declared by courts should be certain, clear and consistent. 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 Constitution of Pakistan, the doctrine of stare decisis is reflected in Article 189 and 201.
Since the doctrine of stare decisis has constitutional backing, it needs to be implemented in letter and spirit. Any violation of this rule will amount to violation of the supreme 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, there exists one exception to the rule of stare decisis i.e. any per incuriam judgement is not binding. A decision is per incuriam when 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 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.
The Supreme Court in Criminal Review Petition No. 44 of 2003 [On review from the judgment/order dated 08.05.2003 passed in Cr. Misc. Appeal No.27 of 2001], explained that “a decision would be treated as given per incuriam when it is given in ignorance of term of statute, or a rule having the force of law”. Earlier, the apex court in the case of Province of the Punjab v Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351) elaborated this principle in great detail and cited the same while declaring its own judgement per incuriam in the above-referred case. In this background, para 4(vi) of the apex court judgement in the case of Tika Iqbal Muhammad Khan v General Pervez Musharraf and 2 others (PLD 2008 Supreme Court 6) holding that judges who were not given or refused to take oath under the Oath of Office (Judges) Order 2007 “have ceased to hold their respective office on the 3rd of November 2007” has no binding force inter alia for the following:
- The observation that Chief of Army Staff/President was competent to issue Proclamation of Emergency of the 3rd day of November 2007 is made without referring to its text where it is clearly mentioned that “I, General Pervez Musharraf, Chief of the Army Staff, proclaim Emergency throughout Pakistan”. The Proclamation of Emergency was by Chief of the Army Staff, whereas Article 232 of the Constitution gives exclusive powers to the President of Pakistan to take any such measure. The judgement given without taking into account the exact text of the Proclamation of Emergency and by inserting the word “President” when the same is not available in the original text is undisputedly per incuriam.
- On the one hand, it has been recorded in the order that “Prime Minister apprised the President of the situation through the letter of 3rd November 2007” for imposition of emergency, but on the other, the order passed by the Chief of Army Staff was approved. It has not been elaborated under what authority of law Chief of Army Staff interfered in matters relating to imposition of emergency. This renders the judgement per incuriam.
- It is held that “the situation which led to the issuance of Proclamation of Emergency of the 3rd day of November 2007 as well as two Orders, referred to above, was similar to the situation which prevailed in the country on the 5th of July, 1977 and the 12th of October 1999 warranting the extra-constitutional steps”. The two acts, namely, Provisional Constitution Order No.1 of 2007 and Oath of Office (Judges) Order, 2007, issued by the Chief of Army Staff were prima facie ultra vires of constitution and a wrong comparison was made with situations on 5th July 1979 and 12th October 1999, the dates on which martial law was imposed. Hence order on the face of it is per incuriam.
- It is held that judges who “who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007, have ceased to hold their offices on the 3rd day of November, 2007. Their case cannot be reopened being hit by the doctrine of past and closed transaction.” Since the Oath of Office (Judges) Order, 2007 is not valid law, any proceedings taken in pursuance of the same are void ab initio. There is no other way except the one provided in Article 209 of the Constitution to remove any judge of Supreme Court or a High Court. The judgement given in ignorance of Article 209 is per incuriam.
Since the judgement of apex court is per incuriam, the reinstatement of judges, deposed through a law violative of express provisions of the Constitution, poses no problem. As soon as the new government is installed, a review petition may be filed in the Supreme Court praying to declare PLD 2008 Supreme Court 6 a per incuriam judgement given in ignorance of the term of a statute and rule having no statutory force.
There is no need for any constitutional amendment, for which two-third majority is required, as propounded by certain circles. The matter is of simple legal nature and should be solved through a legal procedure rather than entering into political polemics and undue controversies. This will not be the first time that the apex court will declare its earlier judgement per incuriam. There are numerous precedents available. The Supreme Court, where a wrong decision was reached, should alone take cognizance of the matter suo moto or on the initiation of any aggrieved party to correct the mistake. It will restore rule of law in its real sense in the country and all the deposed judges will be reinstated without any interference on the part of either executive or parliament. The judiciary should be independent and must gracefully admit its own wrongdoings of supporting any unconstitutional acts of any usurper of power. Such a decision will prove a landmark and go a long way to start a fresh new era of an independent and strong judiciary in Pakistan.
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The writers, legal historian and authors of many books, are members of Visiting Faculty of Lahore University of Management Sciences (LUMS).