Precedents where apex courts reversed decisions

LAHORE: As ousted Pakistani Premier Nawaz Sharif’s political party has decided to file a review petition against his disqualification in the Supreme Court, hoping the judges would set aside their own decision of last Friday, research shows that a couple of important precedents do exist in the eventful history of Pakistan’s jurisprudence where the arbiters had reversed their verdict.

In one such decision, Nawaz Sharif himself was the beneficiary. In its decision dated May 26, 2009, the Pakistani Supreme Court had ruled that Nawaz, the opposition leader at that time, could run in parliamentary elections and hold public office.

A February 25, 2009 court decision had disqualified Nawaz Sharif from holding office, and had sparked massive protests in March. The “New York Times” had reported: “A five-member panel of the Supreme Court led by Justice Tassadaq Hussain Gilani lifted the ban on Mr. Sharif and his younger brother, Shahbaz Sharif, after hearing a review petition the brothers filed in May. The court decision will bolster the standing of Mr. Sharif, who in recent months, has emerged as the most popular politician in the country.”

The prestigious American media house had added: “In February (2009), the Supreme Court had disqualified Mr. Sharif from holding public office because of a criminal conviction connected to the bloodless military coup carried out by former President Pervez Musharraf in 1999. The decision also forced Shahbaz Sharif to step down from his post as chief minister of Punjab Province.”

The “New York Times” had further stated: “The decision by the court, which was then led by a chief justice appointed by Mr. Musharraf, led thousands to take to the streets in protest. The ruling also seemed to have the tacit approval of President Zardari, and was widely interpreted here as being politically driven, deepening the strains between the president and Mr. Sharif.”

It had gone on to write: “A bold public campaign led by Pakistan’s lawyers and Mr. Sharif, opposed by the Zardari government and met with hundreds of arrests, led to the reinstatement of Iftikhar Muhammad Chaudhry as chief justice in March, and the lifting of the ban on the Sharif brothers was widely expected to follow. Mr. Chaudhry was not part of the bench that heard the case regarding the eligibility of the Sharifs, apparently to counter any public criticism that the panel was biased in favor of the Sharif brothers. A triumphant Mr. Sharif on Tuesday termed the court decision a victory for democracy.”

The US media house had said: “The decision was also welcomed by Sherry Rehman, who is a member of the Pakistan People’s Party, led by Mr. Zardari, and a former minister of information.”

Sherry Rehman was quoted as saying: “If handled with foresight, the move should pave the way for a new phase of stability, consolidating the political process in Pakistan. It should also make more space for national consensus on key issues.”

On May 26, 2009, a British media house “The Guardian” had held: “Pakistan's top court today lifted an election ban on the opposition leader, Nawaz Sharif, in a move that distanced the country further from its past of military rule and opened the way for a future attempt to gain power. Sharif was banned from standing for office nine years ago after the military leader, General Pervez Musharraf, sent him into exile in Saudi Arabia. Sharif returned to Pakistan in 2007 but was barred from last year's election.”

The “Guardian” had viewed: “Now the tables have turned: Musharraf is gone, Sharif is the country's most popular politician, and today the supreme court removed the last hurdle preventing his returning to parliament.”

Second example from Pakistan:

In January 2016, the Pakistani Supreme Court had also reversed or overturned its own decision of August 2015 to ban the hunting of the “houbara bustard,” a rare desert bird whose meat is prized among Arab sheikhs as an aphrodisiac.

Wealthy hunting parties from the Gulf travel to Pakistan's southwestern Balochistan province every winter to kill the "houbara bustard" using hunting falcons. The issue has also cast a spotlight on traditionally close ties between Pakistan and its allies in the Arab world, particularly Saudi Arabia.

In its January 22, 2016 judgment, the Supreme Court had said it had set aside its original decision to ban hunting of the bird and that petitions on the issue would be listed for fresh hearings.

According to archives of Pakistani newspapers, a five-member larger bench of the apex court headed by Justice Mian Saqib Nisar announced the verdict on the review petitions filed by the federal and provincial governments against the ban.

In a 4-1 majority ruling, the court lifted the ban on hunting of the endangered bird however, Justice Qazi Faez Isa wrote a dissenting note opposing the bench's order. The court held that there was "apparent error on the face of record" and set aside its August 19, 2015 judgment.

In its 16-page judgment, the top court said the "role of the judiciary is to interpret the laws and not to legislate. Examination of the laws clearly shows that permanent ban on hunting of "houbara bustard" is not envisaged. Hunting of protected animals is prohibited whereas license is required to hunt game animals.”

The August 2015 ban had resulted from a petition that recalled that Pakistan had imposed a permanent restriction on the hunting of “houbara bustards” under the Third Schedule of the Pakistan Wildlife Ordinance 1971, after declaring the species a protected bird.

In October 2015, the federal government and governments of Punjab, Balochistan and Sindh had asked the Supreme Court to review its decision, with federal government terming the invitations to Arabs for “houbara hunting” a “cornerstone of Pakistan's foreign policy."

In January 2016, the government of Sindh had informed the Supreme Court that its order of imposing a ban on the hunting of "houbara bustard" was not implementable.

Sindh government’s counsel Farooq H. Naek had said that hunting of the bird was permitted for 10 days only. The Balochistan High Court, in November 2014, had cancelled all permits for hunting in the province, but its order was quashed by the January 22, 2016 Supreme Court ruling.

Representing the federal government, the Attorney General had asked the Supreme Court to allow “sustainable hunting” of the bird. The government did not want the order set aside in its entirety, just that the ban should not be perpetual, Attorney General Salman Butt had told Supreme Court at that time.

An example from Venezuela, where Apex court had reversed its own decision: In April 2017, as “Deutsche Welle or DW” had reported, Venezuela's Supreme Court had reversed its own ruling to seize legislative power from country’s opposition-controlled Congress

The “Deutsche Welle” had reported: “The Venezuelan Supreme Court has said it is abandoning measures to take power from the opposition-controlled chamber. Critics had condemned the move as a lurch towards dictatorship. Venezuela's top court reversed a decision to seize power from the opposition-controlled congress, after it drew widespread international condemnation and street protests.”

The German media house had said: “The Supreme Court said in a ruling published on its website that it annulled its own ruling made on March 29, 2017 to take legislative powers from Congress after the decision drew concern the oil-rich country was heading towards dictatorship under leftist President Nicolas Maduro. It also ruled to reverse a decision to lift parliamentary immunity. The new ruling came after President Maduro urged the court to review the decision following a state security meeting.”

A couple of legal precedents from the United States, where the Supreme Court had overturned its own decisions:

In United States of America, no lower court can ever supersede a Supreme Court decision. In fact, not even Congress or the President can change, reject or ignore a Supreme Court decision, which thus makes it very difficult to get a Supreme Court decision reversed upon review.

However, there are two ways it can happen: States can amend the Constitution themselves and this requires approval by three-quarters of the state legislatures -- no easy feat by any means.

The second way the American Supreme Court can overrule itself is when a different case involving the same constitutional issues as an earlier case is reviewed by the court and seen in a new light, typically because of changing social and political situations.

But, as history shows, the US Supreme Court has overturned a good number of its decisions, many of which have left a permanent mark on American history.

The Austin v. Michigan State Chamber of Commerce (1990) Case:

The state of Michigan's campaign finance laws initially prevented corporations from contributing to political campaigns or purchasing political advertising out of the company's general fund.

The state’s Chamber of Commerce felt the law - the Michigan Campaign Finance Act -- was an unconstitutional violation of their free speech and sued.

In a 6-3 decision, the Supreme Court declared that the business corporations funded politicians favourable to their interests.

Therefore, it didn't violate the Constitution.

This ruling in this case had opened the door for potent state and federal campaign finance reform laws.

In 2010, the US Supreme Court heard the case of Citizens United v. Federal Election Commission and overturned its decision in the 1990 Austin v. Michigan State Chamber of Commerce Case.

The 5-4 Supreme Court decision had essentially drawn two conclusions: Money equals speech, and corporations have the same right to free speech as individuals.

Therefore, corporate political spending can't be illegal.

Second example from the United States:

The US Supreme Court had decided the 1905 Lochner case that a New York State law limiting the number of hours a baker could work to 60 per week was unconstitutional.

In a 5-4 decision, the judges declared that the law removed a person's right to enter freely into contracts, violating the 14th Amendment. The 1905 Lochner Case had set a major precedent that severely limited federal and state laws regulating working hours and wages.

The “Lochner Era” ended in 1937 when the Court had decided the “West Coast Hotel v. Parrish” Case, and had overturned its 1905 decision. In this case, the Court had decided that the 14th Amendment did not explicitly guarantee freedom of contract, and that such freedom could be limited by reasonable laws designed to protect workers' health and safety.