Judicial Effrontery

JUDICIAL EFFRONTERY JUDICIAL EFFRONTERY By Shehzad Ahmed Alizai, Advocate I am borrowing the title of my article from the reported judgment of Hon'ble Supreme Court of Pakistan i.e. PLD 2023 Supreme Court 7. Effrontery, according to Merriam Webster, means "shameless-boldness and insolence". Hon'ble apex court used this term, while elaborating the importance of binding nature of judgments of High Courts and the Supreme Court, and the constitutional validation accorded to them under Articles 189 and 201 of the Constitution. Principle of binding precedents or stare decisis is recognized worldwide. Lower courts obey and respect the judgments of apex courts when the law or principle of law fit the facts and circumstances of the pending matter. In our country the level of such a respect is even higher as compared to other civilized nations for the reason that even an obiter dicta or collateral opinion of a judge of the Supreme Court, is binding upon all other courts of the country. Doctrine of stare decisis evolved with the process of judicial and legal civilization of the World. Environment of disrespecting the law announced by apex courts is detrimental to judicial stability. It not only erodes public confidence in the judicial system but also wastes precious time of higher forums by coming across a similar matter or question of law which has been decided earlier. Stare decisis is a Latin term which means " to stand by decided matters". Hence, in order to avoid judicial instability, all the courts in the country are required to adhere to the doctrine of stare decisis. However, our today's point of concern does not relate to the pros and cons of the above doctrine. Legally and literally, all the courts of country at the district level do not seem to be violating the Articles 189 and 201 of the Constitution. They through their orders and judgments seem to have a great respect for the convictions, observations and opinions of their respective High Courts and the Hon'ble Supreme Court. Many courts at the district level even quote the reported judgments of the High Courts of other provinces, which means they not only look for mandatory authorities but also for persuasive authorities- judgments which are not binding upon them. Of course, it resembles a healthy judicial environment. Hon'ble Supreme Court also often follows the judgments of High Courts of the provinces which contain the best ever reasoning. But what if, the Hon'ble courts at the district level, during the course of arguments, receive the citations of Higher forums wholeheartedly but thereafter deliver their judgments without the slightest reference of those citations. Such a practice by the Hon'ble courts has assumed the status of daily routine. When I was serving the district judiciary as a civil judge and judicial magistrate, I also became guilty of judicial effrontery many times. However, that was not due to deliberate shameless boldness but due to lack of knowledge and inexperience. With the passage of time I succeeded in overcoming this gross negligence by digesting legal knowledge. As the saying goes "a judge who has not committed any mistake is yet to be born". Hence, one should not focus upon the insolence of junior judicial officers but the concern would be upon those Hon'ble judges of district judiciary who spent their lives in the dispensation of justice and the point for consideration should be the dispensation of constitutional knowledge to the former. When the lawyers complete their research by going through the reported judgments and put them before the Hon'ble courts, they hope for the best. They hope that their hard work would yield fruits. They also look forward as to whether their research work is within the domain or outside? Experienced lawyers become aware of the conclusion of their cases while sitting in their chambers. Seasoned and efficient presiding officers are the real teachers of professional lawyers. They discuss the judgments of higher forums in such a way as if telling the lawyers about their research. Their orders and judgments not only speak for themselves but also serve as a beacon light for the professional Lawyers. Their decisions become a guiding star for the latter. Effrontery occurs when the judgments upon which reliance is placed, are consigned to the dustbin in the Chambers. Yes, dustbin, I repeat. When the Hon'ble judge does not discuss them- let alone any slightest reference or discarding the same with a single sentence- and when the judgments and orders give an impression that a counsel was lazy or lacking in hardwork, then what does it mean? It simply means that His Honor did not take notice of highly esteemed and highly educational legal writing. It means that as if His Honor is telling don't bother to research upon legal topics again. Such a response on the part of Hon'ble courts is unconducive for legal evolution. This on the one hand, discourages the legal fraternity and on the other hand, reduces the environment of hardworking into idleness and negativity. Precedents of Higher courts also bring check and balance in the legal system. If the facts and circumstances of the case attracts the precedents, there would be little room for the trial court to decide the matter other way. If the circumstances are different, then in such a scenario the court is legally bound to discard it but must hold in writing that the judgment relied upon, does not attract the facts of the present case. Efficient judges also explain the reasons as to why any precedent, relied upon, is not helpful. Whereas, some honorable judges do not explain the reasons. Even the latter approach is also acceptable to legal fraternity for the reasons that at least their hard work caught sight of His Honor. Sense of discouragement prevails when the Hon'ble courts ignore the precedents to such an extent that they even do not give any reference of them in their judgments. There are many reasons which are contributing to this dismal state of affairs. First of all, the fault lies on the side of lawyers themselves. They don't know the art of explaining and projecting their research work before the courts. It is often noticed that precedents are placed before the courts with a mummed mouth. Court time is very limited and precious as well. Keeping this in mind, the lawyer must know how to make a precis of the relevant judgments and if this is not possible, how much of the brief details, the moot point and the final findings of the apex court should be memorized so that same may be readily explained to the court. This is necessary for drawing the attention of presiding officer. Unfortunately, lawyers fail to release this burden. Many times, lawyers themselves don't go through the judgments carefully, which ultimately result in the placement of irrelevant matters before the courts. It is this carelessness and inefficiency on the part of former which has established a mindset that majority of the lawyers are not conversant with legal knowledge. Second fault line exists on both sides, bar and bench at the district level. Since Constitution law and principles of interpretation of statutes are not practiced vigorously at the district level, therefore both bar and bench are amateur in the selection of precedents. My ears, in the beginning days of my career as a judicial officer, repeatedly heard the notion that there are numerous reported judgments which run counter to each other-that if one supports one point of view the other supports exactly the opposite. This notion is so badly infused into the minds of judicial officers that the respect and binding nature of judgments had almost lost its efficacy. It is all due to the lack of knowledge about the principles of interpretation and about the doctrine of stare decisis. Legally speaking, it is not so as we think. Under Article 189 of the Constitution, all the judgments of Hon'ble Supreme Court are binding on all the courts, tribunals and executive organs of the country. Within the Hon'ble Supreme Court, the horizontal principle works. Which means if any question of law is decided earlier by any bench, then all the benches of equal strength later in time have to follow the previous bench. And if any bench disagrees with the earlier opinion, it cannot discard the same but put a note of request along with reasons to chief justice for the constitution of larger bench. Hence, only the larger bench can replace the earlier opinion with the new one. In case any bench does take notice earlier decision and pens its findings in a different way, then such a judgment or finding, being a judgment per incuriam, is not binding on any court. It is called horizontal principle applicable upon the Hon'ble Supreme Court. Another principle is vertical principle, which means judgments of Hon'ble Supreme Court are binding upon all the lower courts of the country including the High Courts. Similarly, judgments of High Courts are binding upon the lower courts within the respective provinces. The horizontal principle, as explained before, is also applicable within the Hon'ble High Courts. Another principle which prevails in the judicial circles is persuasive authority. It means the judgements of the High Court of another jurisdiction or province though not binding, yet same carries a weight of authority and reasoning. The court evaluating the said judgement may or may not follow it. In keeping with the above principles, following course of action or principles can be suggested to district courts. 1. The district courts must be conversant with the basic principles of Vertical, Horizontal and Persuasive Authorities. Dogmas like anomalous diversification within the precedents of higher courts must be discarded. 2. District courts are required to prioritize the judgements of Honorable Supreme Court upon their respective High Courts. At the provincial level they must prioritize the judgements of their respective High Courts upon the High Courts of other provinces. 3. The authorities, precedents or judgements of the Supreme Court and High Courts, which are earlier in time, must be followed unless discarded by the larger bench. 4. Latest judgements which are in contradiction with the previous ones of the same strength of bench, must be considered judgements per incuriam and hence, not binding. 5. District courts must discuss the precedents, being relied upon by either party. If same is not possible due to limited time, then at least slight reference like citations relied upon do not attract the facts of present case, must be made as this will ward off the impression that the Honorable court has consigned the judgements to dustbin. The third and foremost fault line concerns to the implementation of Articles 189 and 201 of the constitution. Both the articles are mandatory in nature and more importantly, both are substantive provisions of the constitution. If the courts fail to take notice of them in their judgements inspite of the strong reliance of either party, then what would be the penal consequences? Honorable Supreme Court, in her judgement PLD 2021 Supreme Court 761, though held that disrespect of judgements of Apex courts would entail penal consequences for the lower courts, yet same is not enough for streamlining the mechanism. If the courts do not make reference of relied upon judgments-let alone any discussion upon them-what should be the remedy? The point is not about appellate or revision remedies against the main matter but the remedy against the disrespect of reported citations. The point is what should be the legal and penal consequences for the courts so that practice of disrespect of citations should not be repeated in future. In other words, what should be introduced within the judicial system so that it becomes impossible for the courts to shred the citations like an ordinary piece of paper? Speaking candidly, such a mechanism does not exist in our present judicial system. It is this reason which is responsible for the disrespect of the judgments of the apex courts. Essence of the discussion is not to lower the status of any court at any level. It is actually an effort to bring discipline in the judicial system through the introduction of rules and evolution of specific mechanism. Crux of the discussion is to bring stability in our judicial system, increase public confidence and to create a system of check and balance. Inspection branches established at the High Courts have completely failed to address such kind of grave issues. Instead respective High Courts are required to frame rules in this regard and introduce such a system that must strip off the presiding officers from their discretion of not referring the judgments being relied upon. Such measures are not only necessary for the sake of justice but these also pave the way for positive competition and hardworking among both the Bar and the Bench.