Text of judgment by two SC judges

The first part of this judgment appeared in March 28 edition of The News.

Applicability of res judicata to a decision of a High Court made under Article 199

26. We have pondered upon this aspect also, that if this Court decides upon the question of law involved in the present matter against that what has been decided by the Single Bench of the Lahore High Court without setting aside that decision, which decision the ECP would be bound to obey and comply with. At first blush, it appears that it would be the decision of this Court, in view of Article 201 of the Constitution which is subject to Article 189 and the provisions of the latter Article that make the decision of this Court binding on all other courts of the country. However, when such a position is examined profoundly, it presents a serious legal problem in the said answer because of the difference between the doctrine of stare decisis incorporated in Articles 189 and 201 of the Constitution and the doctrine of res judicata codified in Section 11 of the Code of Civil Procedure 1908. Fortunately, we need not dive deep and do labour for explaining the difference between the two doctrines as this Court, while dealing with and rejecting the contention that the bar of res judicata is not attracted to a decision on a question of law, has already elaborated these doctrines and explained the difference between them in Pir Bakhsh, which we can advantageously state here in brief.

27. “Stare decisis” and “res judicata” both are Latin terms; stare decisis literally means to stand by a decision and res judicata, a matter adjudged. The core distinction between the two doctrines lies in what a case decides generally and what it decides between the parties to that case. What a case decides generally is the ratio decidendi (rationale for the decision) or the rule of law on which the decision is based, for which it stands as a precedent and is to be applied and followed in the later cases by virtue of the doctrine of stare decisis; and what it decides between the parties is far more than this, which includes the decision on both issues of law and issues of facts arisen in the case as well as the adjudication on the contested claims of the parties, and the parties and their privies are bound by that decision and adjudication because of the doctrine of res judicata. Stare decisis is based upon the legal principle or rule involved in a prior case and not upon the adjudication which resulted therefrom, whereas res judicata is mainly based upon the adjudication. 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.

28. In view of the above exposition of the difference in the scope and applicability of the doctrines of stare decisis and res judicata, we are of the considered opinion that the judgment of the Single Bench of the Lahore High Court, if it is not set aside in the ICAs pending before the Division Bench of that High Court or in an appeal filed by any of the parties to the case or any other aggrieved person before this Court under Article 185 of the Constitution, would remain binding on the ECP and the Governor of Punjab by virtue of the doctrine of res judicata, notwithstanding any decision of this Court contrary to that of the Single Bench of the Lahore High Court. And such a situation, instead of resolving the question of law, would create more constitutional and legal anomalies. Therefore, on this ground also, we find it not a fit case to exercise the jurisdiction of this Court under Article 184(3) of the Constitution. That is why a five-member Bench of the Indian Supreme Court has held in Daryao that the general rule of res judicata applies to writ proceedings before it under Article 32 of the Indian Constitution (which is similar to Article 184(3) of our Constitution), and if a writ petition filed by a party under Article 226 of the Indian Constitution (which is similar to Article 199 of our Constitution) has been dismissed on the merits by a High Court, the judgment thus pronounced is binding between the parties, which cannot be “circumvented or by-passed” by taking recourse to Article 32 of the Indian Constitution. We agree with and adopt this view, in holding that a judgment pronounced by a High Court in the exercise of its jurisdiction under Article 199 of the Constitution cannot be “circumvented or by-passed” by taking recourse to Article 184(3) of the Constitution, on the constitution petitions filed by the litigants or suo motu by the Court.

Federalism - Judicial propriety in allowing the High Courts of the respective Provinces to decide upon matters that relate to those Provinces only

29. Pakistan is a federal republic and its Constitution is a federal constitution. The preamble of the Constitution states that the territories included in or in accession with Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed, and Article 1 of the Constitution declares that Pakistan shall be Federal Republic to be known as the Islamic Republic of Pakistan. ‘The commonly accepted features of a federal constitution are: (i) existence of two levels of government; a general [federal] government for the whole country and two or more regional [provincial] governments for different regions within that country; (ii) distribution of competence or power - legislature, executive, judicial, and financial - between the general [federal] and the regional [provincial] governments; (iii) supremacy of the constitution - that is, the foregoing arrangements are not only incorporated in the constitution but they are also beyond the reach of either government to the extent that neither of them can unilaterally change nor breach them; (iv) dispute resolution mechanism for determining the competence of the two governments for exercising any power or for performing any function.’ Federalism is, thus, based upon the division of powers between the federation and its federating units, where both of them are independent and autonomous in their own domains.

30. Federalism under our Constitution, therefore, also envisages independent federating units with the autonomous legislature, executive and judiciary. Chapter 1 of Part V of the Constitution provides for the distribution of legislative power between the Federation and the Provinces. Chapter 2 of the same Part deals with the distribution of executive power between the Federation and the Provinces. Chapters 1 to 3 of Part VII of the Constitution deal with the Judicature; they provide a separate High Court for each Province with its jurisdiction limited to the territory of that Province and a Supreme Court for the whole country with an overarching jurisdiction. The jurisdictional limits between the coordinate High Courts on the basis of territory and the overarching jurisdiction of the Supreme Court, form the construct of judicial federalism. It also fosters diversity in legal interpretations and allows for experimentation in legal and policy solutions first at the provincial level.

31. The core principle of federalism is provincial autonomy, which means the autonomy and autonomous functioning of the provincial legislative, executive and judicial institutions. The federal institutions must abide by this principle in federalism. Under our Constitution, a High Court of a Province is the highest constitutional court of that Province and is conferred with the jurisdiction under Article 199 of the Constitution to judicially review the acts and proceedings of all persons performing, within its territorial jurisdiction, functions in connection with the affairs of the Federation, a Province or a local authority. The principle of provincial autonomy requires that when a matter which relates only to a Province, and not to the Federation or to more than one Provinces, the High Court of that Province should ordinarily be allowed to exercise its constitutional jurisdiction to decide upon that matter, and this Court should not normally interfere with and exercise its jurisdiction in such a matter under Article 184(3) of the Constitution, which jurisdiction is primarily federal in character. The federal structure of our Constitution necessitates that the autonomy and independence of the apex provincial constitutional court of a Province, should not be readily interfered with by this Court but rather be supported to strengthen the provincial autonomy and avoid undermining the autonomy of the provincial constitutional courts.

Parliament is the best forum and political dialogue is the best way to resolve political issues

32. By the present suo motu proceedings and the connected constitution petitions, this Court has been ushered into a “political thicket”, which commenced last year with the dissolution of the National Assembly of Pakistan and reached the dissolution of the Provincial Assemblies of two Provinces this year after passing through the disputes over the matters of counting of votes of defected members of political parties and election to the office of the Chief Minister of a Province, and that too, in the exercise of its original jurisdiction under Article 184(3) of the Constitution.

33. Where the political parties and the people subscribing to their views are sharply divided, and their difference of opinion has created a charged political atmosphere in the country, the involvement and interference of this Court in its discretionary and extraordinary jurisdiction under Article 184(3) of the Constitution into a “political thicket”, would be inappropriate and would inevitably invite untoward criticism of a large section of the people. ‘We must not forget that democracy is never bereft of divide. 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.

34. Democracy, it must be understood, does not mean majoritarian rule. The essence of democracy is the participation of all concerned in the decision-making process and arriving at collective decisions by accommodating differences of interest and opinion to a possible extent. Taking all decisions only by majority rule is no less dictatorship, and the absolutist approach to controversial issues is the hallmark of extremists. Opacity and inconsistency, which are taken as intellectual impurity in judicial decisions, are often inseparable from the kind of compromises the politicians have to make in the democratic process. Unbending attachment to a standpoint is often proved politically sterile. Litigation is not a consultative or participatory process and can therefore rarely mediate differences on issues where there is room for reasonable people to disagree; only a political process can resolve such issues and adjust disagreements. Thus, a nation cannot reduce divisions among its people unless their representatives – the politicians – adopt and participate in the democratic process of political dialogue, in finding solutions to the people’s social, economic and political problems.

Decision by 4-3 or 3-2 majority

35. We also find it necessary to narrate the reasons for nonissuance of the Order of the Court in the present case, to make them part of the record. 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, 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. 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.” The Court further held that “in the absence of a recusal by a member of the Bench, any amount of disagreement amongst the members of the Bench, on an issue before them, cannot form a valid ground for reconstitution of the Bench….reconstitution of a bench while hearing a case, in the absence of any recusal from any member on the bench or due to any other reason described above, would amount to stifling the independent view of the judge. Any effort to muffle disagreement or to silence dissent or to dampen an alternative viewpoint of a member on the bench, would shake the foundations of a free and impartial justice system… a bench, once it is constituted and is seized of a matter on the judicial side, cannot be reconstituted by the Chief Justice in exercise of his administrative powers, unless a member(s) of the bench recuses or for reasons discussed above.”

36. We endorse the above view and hold that a Judge forming part of a Bench once constituted and seized of the case assigned to it cannot be excluded from that Bench unless he recuses himself from hearing that case or becomes unavailable to sit on the Bench for some unforeseen reason. After having made a final decision on the matter at an early stage of the proceedings of a case, the non-sitting of a Judge in the later proceedings does not amount to his recusal from hearing the case nor does it constitute his exclusion from the Bench. In this case, the two Hon’ble Judges having decided the matter, left the option of their sitting or not sitting on the Bench with the Hon’ble Chief Justice, for further hearing of the case. The exercise of this option by the Hon’ble Chief Justice has no effect on the judicial decision of those two Hon’ble Judges passed in the case. The reconstitution of the Bench was simply an administrative act to facilitate the further hearing of the case by the remaining five members of the Bench and could not nullify or brush aside the judicial decisions given by the two Hon’ble Judges in this case, which have to be counted when the matter is finally concluded. It is important to underline that the two Hon’ble Judges (Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ.) were not removed from the Bench but had voluntarily recused themselves. Thus, their short orders are very much part of the case, therefore, the administrative order of reconstitution of the Bench by the Hon’ble Chief Justice cannot brush aside the judicial decisions of the two Hon’ble Judges who had decided the matter when the case was heard by a nine-member Bench. Failure to count the decision of our learned brothers (Yahya Afridi and Athar Minallah, JJ.) would amount to excluding them from the Bench without their consent, which is not permissible under the law and not within the powers of the Hon’ble Chief Justice. Therefore, we are of the opinion that the dismissal of the present suo motu proceedings and the connected constitution petitions is the Order of the Court by a majority of 4 to 3 of the sevenmember Bench. We are also fortified in our opinion by the precedent of the well-known Panama case. In the said case, the first order of the Court was passed by a 3-2 majority, and in the subsequent hearings conducted in pursuance of the majority judgment the two Hon’ble Judges, who had made and announced their final decision, did not sit on the Bench but they were not considered to have been excluded from the Bench and were made a party to the final judgment passed by the remaining three Hon’ble Judges, and they also sat on the Bench that heard the review petitions.

Need of making rules for regulating the exercise of jurisdiction under Article 184(3) and the constitution of Benches

37. Lastly, we find it essential to underline that in order to strengthen our institution and to ensure public trust and public confidence in our Court, it is high time that we revisit the power of “oneman show” enjoyed by the office of the Chief Justice of Pakistan. This Court cannot be dependent on the solitary decision of one man, the Chief Justice, but must be regulated through a rule-based system approved by all Judges of the Court under Article 191 of the Constitution, in regulating the exercise of its jurisdiction under Article 184(3) including the exercise of suo motu jurisdiction; the constitution of Benches to hear such cases; the constitution of Regular Benches to hear all the other cases instituted in this Court; and the constitution of Special Benches.

38. The power of doing a “one-man show” is not only anachronistic, outdated and obsolete but also is antithetical to good governance and incompatible to modern democratic norms. 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 oneman 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 entire edifice of this Court and of the justice system stands on public trust and confidence reposed in it. Therefore, one-man show needs a revisit as it limits diverse perspectives, concentrates power, and increases the risk of an autocratic rule. On the other hand, the collegial model ensures good governance as it rests on collaboration, shared decision-making and balance of power to ensure the best outcome.

39. The Chief Justice of this Court is conferred with wide discretion in the matter of constituting Benches and assigning cases to them under the present Supreme Court Rules 1980. Ironically, this Court has time and again held how public functionaries ought to structure their discretion but has miserably failed to set the same standard for itself leaving the Chief Justice with unfettered powers in the matter of regulating the jurisdiction under Article 184(3) (including suo moto) and in matters of constituting benches and assigning cases. It is this unbridled power enjoyed by the Chief Justice in taking up any matter as a suo motu case and in constituting Special Benches after the institution of the cases and assigning cases to them that has brought severe criticism and lowered the honour and prestige of this Court. Our acts and decisions as members of a constitutional institution are recorded in history and commented upon. Political scientist and legal scholar, Yasser Kureshi, in his recent book “Seeking Supremacy- The Pursuit of Judicial Power in Pakistan” criticizes this unfettered power of the Chief Justice, thus:

“During the tenure of Chief Justice Saqib Nisar (2016- 2019), the Supreme Court used its suo moto powers to intervene in governance to an extent that had never been seen before. It is hard to do justice to Justice Nisar's whirlwind of on-bench and off-bench interventions, as he sought to fix all of Pakistan's socio-economic problems: water purity and distribution, milk production, public sector corruption, hospital management, educational disparities and population control, through the striking of the gavel. Within the first three months of 2018 alone, Nisar launched thirty suo moto cases, often prompted by news articles he read, headlines he watched on the evening news or even posts he saw on social media. In one case, Nisar took suo moto notice of a photograph circulating on social media that showed a funeral procession passing over sewage in a narrow street.

“Upon taking suo moto notice, Nisar would then order public officials to present themselves before the Court. During these proceedings, he would typically reprimand public officers and comment on state mismanagement, and in interim orders, he would direct public officers to remedy the issue and report back to the Court, dismiss officers who did not adequately address his concerns and sometimes even issue contempt of court charges against public officials who did not satisfactorily comply with his orders. Perhaps the most controversial example of Justice Nisar's suo moto jurisprudence was his order to construct new dams to resolve Pakistan's water shortages, 'for the collective benefit of the nation'. Nisar launched a fundraising scheme for donations to pay for the multi-billion dollar dam-building project, authorizing televised ads and newspaper articles to openly solicit funding, and even ordering convicted parties in cases to do with assault, land acquisitions and environmental damage to deposit funds into the fund for the dam for the Court's new project. Off the bench, Nisar also transformed the role of the chief justice, donning the hat of government inspector and international fundraiser, showing up at hospitals, schools and water plants to assess their conditions, followed by news cameras.”

In order to build a strong, open and transparent institution, we have to move towards a rule-based institution. 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.

40. Apprehending the misuse of the extraordinary original jurisdiction of this Court under Article 184(3) of the Constitution, Ajmal Mian, CJ., speaking for the majority of a seven-member Bench of this Court in Wukala Mahaz, emphasized in 1998 that “a balanced, consistent and indiscriminate policy” is to be evolved by this Court for invoking and exercising this extraordinary original jurisdiction of the Court. The later years proved his apprehension true. The experience of last two decades has shown a rather more need to frame “a balanced, consistent and indiscriminate policy” for invoking and exercising this jurisdiction. Leaving it to the unstructured discretion of one person - the Chief Justice - has utterly failed. With the change in the office of the Chief Justice, there is a change in the “policy” of invoking and exercising the jurisdiction under Article 184(3) of the Constitution. What then is the solution? In our opinion, it is the making of rules on the matter by this Court in the exercise of its rule-making power conferred on it by Article 191 of the Constitution, which can serve the purpose. Such rules may provide that the extraordinary jurisdiction of the Court under Article 184(3) of the Constitution, either on the petition of a person or suo motu by the Court, shall be invoked only if a majority of all the Judges or the first five or seven Judges of the Court, including the Chief Justice, as may be prescribed in the rules, agrees to it while considering the matter on the administrative side. The criterion for selecting cases for being dealt with under this jurisdiction should also be clearly laid down in the rules, to make the practice of the Court in this regard, uniform and transparent.

41. So far as the matter of constituting a Bench for hearing a case under Article 184(3) of the Constitution is concerned, there must also be uniformity and transparency, which can be best assured by constituting a regular five or seven-member Bench once at the commencement of every judicial year, or twice a year for each term of six months, by including in that Bench the senior most Judges or the senior most Judges of each Province on the strength of this Court with the Chief Justice or the Senior Puisne Judge as head of that Bench. Constituting special Benches on case to case basis, after the institution of the cases, is complete negation of fairness, transparency and impartiality required of a judicial institution to maintain its legitimacy and credibility of its judgments.

42. The right to have his case heard by a Bench or a Judge to whom the cases are assigned on the basis of a notified objective criterion is referred to as a “right to a natural judge” in some jurisdictions. 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. This Court, being the guardian of the fundamental rights of the people of Pakistan against encroachments made by other public authorities and institutions, is to enforce the fundamental right of the public relating to its own functioning with more fervor and commitment than others. We are enlightened in this respect by the invaluable remarks of Fletcher Moulton, L.J., and quoted by Earl Loreburn in Scott v. Scott, that “courts of justice, who are the guardian of public liberties, ought to be doubly vigilant against encroachments by themselves.” That is why this Court needs to be rule based and those rules should be uniform, open and available to the public.

43. These are the reasons for our short order dated 01.03.2023, dismissing the present constitution petitions and dropping the suo motu proceedings, with the observation that the respective High Courts shall decide the matters pending before them within three working days, which is reproduced hereunder for completion of record:

For the reasons to be recorded later, we hold that:

i. The suo motu proceedings (SMC No. 1 of 2023), in the facts and circumstances of the case, are wholly unjustified in the mode and manner they were taken up under Article 184(3) of the Constitution of the Islamic Republic of Pakistan (“Constitution”), besides being initiated with undue haste.

ii. The Suo Motu Case No.1 of 2023 and the two Const. Petitions No. 1 & 2 of 2023 under Article 184(3) of the Constitution, in the light of the principles settled in Manzoor Ilahi and Benzair Bhutto, do not constitute a fit case to exercise the extraordinary original jurisdiction of this Court under Article 184(3) of the Constitution and are thus not maintainable as the same constitutional and legal issues seeking the same relief are pending and being deliberated upon by the respective Provincial High Courts in Lahore and Peshawar, without there being any inordinate delay in the conduct of the proceedings before them.

iii. There is no justification to invoke our extraordinary jurisdiction under Article 184(3) to initiate suo motu proceedings or entertain petitions under Article 184(3) of the Constitution, as a single Bench of the Lahore High Court has already decided the matter in favour of the petitioner before the said High Court vide judgment dated 10.02.2023 and the said judgment is still in the field. The intra court appeals (ICAs) filed against the said judgment are pending before the Division Bench of the Lahore High Court (and none of the said petitioners has approached this Court under Article 185(3) of the Constitution).

iv. Once a constitutional issue is pending before a Provincial High Court, keeping in view the Federal structure of our Constitution the autonomy and independence of the apex provincial constitutional court, should not be readily interfered with rather be supported to strengthen the provincial autonomy and avoid undermining the autonomy of the provincial constitutional courts.

v. There is no inordinate delay in the proceedings pending before the High Courts, infact the instant proceedings have unnecessarily delayed the matter before the High Courts. However, considering the importance of the matter we expect that the respective High Courts shall decide the matters pending before them within three working days from today.

vi. Even otherwise without prejudice to the above, such like matters should best be resolved by the Parliament.

2. We, therefore, agree with the orders dated 23.02.2023 passed by our learned brothers, Yahya Afridi and Athar Minallah, JJ., and dismiss the present constitution petitions and drop the suo motu proceedings.

Concluded