Of benches & bustards
Laws, like men, can be good or bad. Nonetheless, we prefer the ‘rule of law’ to the ‘rule of men’ because the former lends certainty and predictability to the governance of one’s affairs. The latter subjects one to the vagaries and whimsies of individuals.

Last August, the Supreme Court (SC) held that Pakistani law forbids hunting of houbara bustards. A three-member bench observed “we are told that foreign dignitaries who hunt the houbara bustard bring money and spread their largesse in establishing schools, mosques, dispensaries etcetera… The laws of Pakistan … are not saleable commodities and in contending as much the governments debase, degrade and demean the citizens. If we do not … respect our own laws, can we expect foreigners to do so?” This January, a five-member bench reviewed the earlier judgement and declared that “[e]xamination of the laws clearly shows that permanent ban on hunting of houbara bustard is not envisaged.”

Last September, a three-member SC bench unanimously held that Barrister Ali Zafar had committed contempt of court and barred him from practising law for one year. Exactly a month later, a five-member bench allowed Zafar’s review application and restored his licence.

The willingness and alacrity with which our Supreme Court changes its mind is perhaps unique.
Earlier, in 2013, the majority of a five-member SC bench in the judges’ pensions case gave exhaustive reasons why retired judges who had received excess pensionary benefits on account of an earlier misinterpretation of the law should not be compelled to return the benefits already received. Three months later, the majority of a seven-member review bench indicated such benefits were indeed liable to return and ordered the matter to be reheard.

World over, courts do change — over time — their interpretation of law. That is how jurisprudence evolves. But the willingness and alacrity with which our SC changes its mind is perhaps unique. Are Pakistani SC judges more open to admitting mistakes than their foreign counterparts? Or do they make more mistakes in the first place?

Before delving into these questions, three points should be noted.

Firstly, that the SC is the apex judicial authority in Pakistan. What it says not only finally and conclusively decides the dispute between the parties but declares the law for all courts, government functionaries and citizens in future. As such, it is imperative that — for there to be any certainty and predictability in law, for litigation to ever end, for governments and citizens to know what is permitted and what is not — when the SC makes up its mind, it should stay made up. In the oft-cited words of US Supreme Court judge Robert Jackson, “[w]e are not final because we are infallible, but we are only infallible because we are final.”

Secondly, to maintain its own finality, the SC has long restricted its review jurisdiction to correcting glaring errors of fact or law floating on the surface of the earlier decision ie where a crucial fact or legal provision was not brought to the court’s attention. Just because a later bench disagrees with the analysis of facts or interpretation of law in the original decision is not grounds to reverse it. Of course, the SC can — in subsequent cases — revisit legal principles enunciated in earlier decisions and improve, refine or even depart from them as part of the process of jurisprudential evolution. But such evolution usually takes place over decades, not days.

Thirdly, as a procedural safeguard for the preservation of the above two principles, the SC rules require that an application for review be placed, as far as possible, before the judges who made the original decision.

In all three of the above cases, a larger bench was constituted by the then chief justice of Pakistan during the course of review proceedings. The original set of judges hearing the cases were left in minority. The new judges (now forming a majority) promptly proceeded to set aside the original decision. Being out-numbered, the original judges could only record their indignant dissent — both with the constitution of a larger review bench and the eventual decision to set aside the original finding.

At least two of the review judgements were, in this writer’s opinion, better reasoned than the original ones. That is, however, irrelevant. Crucially, the reviewing benches were unable to point out any specific facts or statutory provisions that were overlooked by the original benches. Their decision to reverse was, ultimately, founded in their conviction that the original benches had gotten it wrong. But this liberal approach towards review has very adverse consequences.

Firstly, the fiction that every SC decision is a decision of the court itself — rather than the individualised inclinations of a particular bench — is laid asunder. A message is sent to all governments and litigants that SC decisions and enunciations of law are not final per se — but only final till the arrival of a more propitious time and a review bench with more amenable judges.

Secondly, and far more damagingly to the SC’s reputation, the swiftness and ease of the reversals creates an impression, rightly or wrongly, that either the ben*ches passing the original decision were manned with judges ideologically inclined towards a particular outcome (thus requiring immediate correction) or that the larger benches in review were so constituted.

In the post-2009 era, the then CJP was often accused of imprinting his ideological inclinations upon the court’s jurisprudence through his power to constitute benches and assign cases. If the present SC wishes to permanently dispel that impression, then exclusive discretion should be replaced with a system where benches are constituted and cases allocated through random selection within rigidly defined parameters. Any applications for larger benches should be decided solely by the bench before whom they are presented.

Secondly, to reduce frequent reviews, SC benches should be made larger. Benches with fewer judges err more readily.

Larger benches are more likely to cover all angles of a case. They are also harder to influence — even by dominant personalities within the bench itself. Sure, this might mean fewer benches and slower decisions at the apex level — but at least what is decided shall stay decided. A more consistent exposition of the law by the SC would make the work of lower courts easier and faster. Litigation overall would be reduced.

Viewed thus, the recent Senate bill to increase the number of SC judges from 17 to 26 may well have an effect opposite to what is intended. More judges means more benches and faster decisions but at the cost of increasing fractures and contradictory judgements within the SC. The law shall become less certain and both the pace and quality of decision-making in lower courts (where most litigation starts and ends) shall be adversely affected.

The writer is a barrister.

Published in Dawn, January 30th, 2016