FOREIGN JUDGMENTS AND ITS REPORTS OF
RULINGS AS PRECEDENT IN PAKISTAN
By
MUHAMMAD
MUMTAZ
And
MUHAMMAD
IKRAM ADVOCATES
149
District Courts Faisalabad.
The modern era, intellectual
development, pace of progress, diversity in human behavior, adoption of new
techniques, replacement of old with the new, advancement in human thinking
process, emergence of new laws and its application,has
given rise to a new dimension to
judicial process. Law as well as its remedies are also changing with the
passage of time (PLD 2009 SC 284).As the result of the above, judicial thinking
Patten has also undergone a significant change.Similarly,the
making up of cases and case law flowing from it has also given birth and worth
to precedents. In common law legal systems,a
precedent or authority is a principle or rule established in a previous
adjudication that is either binding on or persuasive for a court or other
tribunal when deciding subsequent cases with similar issues or facts-in-issue.The general principle in common law legal system is
that similar cases bearing similar facts-in-issue should be decided so as to
give similar predictable outcomes and the principles of precedent is a
mechanism by which the goal is acheived. Common law
precedent is a third kind of law on equal footing with statutary
and regulatory law.
Stare decisis
is a legal principle by which judges are obliged to respect the precedent or
previous foundation established by prior decisions. The origin is from the
phrasing of the principle as found in the latin
maxim “Stare Decisis et non quieta
movere” to stand by decisions and not disturb the
undisturbed. In a legal context, this is taken to mean that courts should
generally abide by precedent and not disturb settled matters.The
essence of
predictability is precedent.
The Constitution of the Islamic
Republic of Pakistan and even the previous Constitutions to its promalgation provide its own modus operendi
as to the following of the precedents established by superior judiciary to be
followed or perused for provided guidelines in it.
Ř
Decisions by the Apex Courts
vide Article 189 of the Constitution 1973.
Ř
Decisions of Superior Courts
are binding on all Courts and persons in Pakistan.This
view is an extension of earlier views as expressed in previous decisions.
Ř
Decisions of Federal Shariat Court vide Article 203GG
Ř
Decisions of the High Court
vide Article 201
A trend has been seen, the lawyers
having completed their studies at higher level like Barrister-at-law,LLM and PhD from foreign
universities to quote precedents while arguing cases in High court, Supreme
Court and as per necessity before any other forum of law. This trend of
citations has been growing day by day. However, the fact remains that the Judge
or Authority before whom such references are being quoted may
or may not have foreign qualification but the maxim minimum cannot undergo any
disturbance that “a judge is more wise than anyone else concerned with the case
or administration of justice including his judicial width and worth in the
above context”.
Foreign
judicial references are not without advantage.Sometimes
the same result in new formation,formulation
or innovation of rule. The August Supreme Court in a judgement
reported in 1973 PLC 673 quoted the words of scarman
L.J that “Excessive use of Lawful power is itself unlawful”.Drawing
a strength from the above quotation we feel no hesitation to hold it conversely that non exercise
of discretionary power in a legitimate case which requires expediency in favour of subject or withholding such discretionary power
without any rhyme or reason will tentamount to
repudiation and negation of power conferred upon an authority to meet a
particular situation which was beyond the control of party seeking relief
through the discretionary powers (PLJ 2014 Karachi 97 DB).
As
peter L.J pointed out in Robinson v/s Fernsby (2004
WTLR 257 para 120) Judicial Tergiversation is
not be encouraged.On the other hand, it takes courage
and intellectual honesty to admit one’s mistakes (2013 SCMR 358 para 46), the High Court of Australia while deciding the
case common wealth v/s Hospital contribution fund (1982) 150 CRL 49 at 56-8,
identified following four matters which justifies the departure from earlier
decisions;
Ř
The first was that the earlier
decision did not rest upon a principle carefully in a significant succession of
cases.
Ř
The second was differences b/w
the reasons of the justices constituting in a significant succession of cases.
Ř
The third was that the earlier
decisions had achieved nothing useful but on the contrary had led to
considerable inconvenience.
Ř
The fourth was that the earlier
decisions had not been independently acted on in a manner which militated
against reconsideration.
The question to be
resolved as to what importance and presumptions as to collections of laws and
report of decisions are to be attached to a foreign judgement
with all its connected benefits. Article 94 of QSO 1984 is relevant for
necessary consideration. In the same context judicial decisions rendered by
Indian and Pakistan courts merit consideration as mentioned in relevent para.Prevalent
constitution of Pakistan provides nowhere with reference to the above
discussion.
Indian and Pakistani judiciary has
nowhere been found to refuse to accept and give due regard to foreign and
English Courts. Foreign judgments may be of assistance in interpretations of
Pakistan law but they are not determinative (PLD 2007 SC 517; PLJ 1982 SC 373;
A 1949 PC 39).
English decisions provide guidance if they are
in relation to principles or statutes
identical to Pakistani law (AIR 116; 18 IC 997; A 1950 EP 111 FB; AIR 1914 L
316; AIR 1936 P 57 See A 1928 PC 2). An
other view is English decisions posses a persuasive value (P1970
SC 185; 1996 CLC 1337; P 1950 L 42; A 1956 SC 140; See A 1939 FC 1).Other
foreign judgement may also be referred to (PLD 1986 L
294; A 1942 FC 33 See A 1939 FC 1; A 1946 A 161).
Another aspect of the matter is when
foreign judgments not conclusive vide Sec 13 CPC if the foreign judgements as detailed A to F are found inconclusive in
Pakistan, then the ratio decidendi becoming the basis
of the such judgments shall also lose its significance in all probability. The
utility of foreign judgment is traceable in the legal idea that Banking Court
can entertain a suit founded on foreign judgments (1990 MLD 1779).
Aftermath of the above dictums and
discussion stands settled in Muhammad Ashraf Tawana etc v/s
Pakistan etc,the Supreme Court of Pakistan concludes
“Reliance was also placed on a large number of foreign precedents which for the
present we need not consider at any length because of the law and the precedent
in our own jurisdiction which provides adequate guidance in the matter before us.In the cited judgement the Chairmainship of
Securities and Exchange Policy Board was declared to have been offered
and assumed sans lawful exercise of power and non complaince
of prescribed procedure.(Constitution
Petition No.59 of 2011 and C.M.A.s’ Nos:326 and 633 of 2012 and Cr.L.o.P.94 of
2012 in Const.P.59/2011 heard on 09-04-2013(approved for reporting)
The end result with permission to
comment more is that once Pakistani judge made Law is already available being
sufficient enough and providing proper guidelines for the true, just, equitable
and legal solution for the resolution of a controversy in hand, then there is
hardly any necessity to follow any judgment of a foreign jurisdiction and to
permit it as precedent in Pakistan.
REFERENCES
1.
PLD 2009 SC 284
2.
1973 PLC 673
3.
PLJ 2014 Karachi 97 DB
4.
2004 WTLR 257 para 120
5.
2013 SCMR 358 para 46
6.
1982) 150 CRL 49 at 56-8
7.
Article 94 of QSO 1984
8.
PLD 2007 SC 517; PLJ 1982 SC
373; A 1949 PC 39
9.
AIR 116; 18 IC 997; A 1950 EP
111 FB; AIR 1914 L 316; AIR 1936 P 57 See A 1928 PC 2
10.
P1970 SC 185; 1996 CLC 1337; P
1950 L 42; A 1956 SC 140; See A 1939 FC 1
11.
PLD 1986 L 294; A 1942 FC 33
See A 1939 FC 1; A 1946 A 161
12.
1990 MLD 1779
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