Curtness of courts

Published October 18, 2021
The writer is a litigator based in Islamabad.
The writer is a litigator based in Islamabad.

THE high courts and the Supreme Court in Pakistan, sometimes referred to as the superior courts, have a prerogative that the other adjudicatory forums have been held not to possess. They can, at times, be short with you, by rendering orders consisting of no more than a sentence or two. Matters of monumental significance, which may have taken weeks, months or even years of adjudication, may be resolved by the superior courts with only a couple of sentences to show for it — through what is known as a ‘short order’.

A detailed judgement may come much later, but that does not, in the words of the superior courts, take anything away from the binding nature of the short order.

Following the Supreme Court’s decision in ‘The State vs Asif Adil & Others’ (1997), the superior courts have repeatedly reminded litigants, and the public at large, that the practice of rendering short orders by the superior courts is nothing peculiar. Short orders are the final orders, which must be acted upon. For the purposes of filing an appeal, the period of limitation begins to run from the time the short order is rendered.

There are at least four problems with short orders.

In some situations, the short order, which often reveals only the conclusion, without the requisite reasoning, may, at times, not even be followed by a detailed judgement. This may happen, for instance, when the short order is rendered by an additional justice, who is later not confirmed. The lack of opportunity, incentive or inclination may mean that the outgoing justice never gets around to writing the judgement before departing. These were, for instance, the facts in the case of ‘Asif Adil’.

Second, short orders may be rendered by justices just before their retirement, and the time may run out before their having penned the detailed judgement. Again, the short orders seal the deal, without the detailed judgements ever getting written.

The practice of issuing short orders, followed by post-hoc reasoned detailed judgements have also led to certain anomalous situations. In the ‘Matter of Reviews on Behalf of Justice (Retd) Abdul Ghani Sheikh & Others (2013)’, for instance, the Supreme Court sat in review in a case where the five justices, in their short order, unanimously agreed to set aside the infamous Supreme Court judgement ‘Accountant General vs Ahmed Ali U Qureshi (2008)’ that had allowed the rogue Provisional Constitutional Order (PCO) justices the benefits of pensions after retirement.

But later, at the time of detailed judgement, there emerged a three-two split, with the majority deciding that the already received benefits need not be recouped. In review, the seven justices again split on whether the short order mandated the recovery of already doled-out benefits. Eventually, it was resolved that the matter be reheard.

Even without this example, most people are aware as to where the devil resides: in the details. And a short order wholly lacks them.

There are at least four problems with short orders. First, a short order may or may not have been rendered on the basis of mere intuition, and in the absence of more, there is no way to tell.

Second, for the purposes of filing a timely appeal, the litigant ought to know the reasons why she did not prevail.

Third, the superior courts are often confronted with issues of weighty implications, where justifying conclusions only lends credence to those decisions.

Fourth, and importantly, providing reasons for deciding cases is a matter of basic courtesy and respect. With persons one wants to engage with, and whose intellect one respects, one reasons through to a conclusion. It is one thing to say that you should do ‘x’ because I said so, and totally an­other to convince and persuade an individual to do ‘x’ on the basis of sound reasoning.

The irony, however, lies in the fact that the superior courts have held that it is only them, and no other adjudicatory forum, that are entitled to render short orders. It is unclear why the superior courts should be exempt from the very requirement imposed on others.

Granted that the superior courts in Pakistan are overburdened, exercising jurisdiction over a wide range of, at times, relatively trivial matters. There are important conversations that need to happen regarding, among others, the expansiveness of the superior courts’ jurisdiction; the needless exercise of suo motu powers; the non-appointment of judicial-members in the statutory tribunals. There is also a need for resources such as competent research assistants and law clerks that may help the justices with their many responsibilities.

At the same time, however, there has to be an assurance to litigants, and the public at large, that the conclusions the justices reach follow from the premises. Writing the judgement may be onerous and time-consuming, but there cannot be a prerogative to be short with the people.

The writer is a litigator based in Islamabad.

awahid@umich.edu

Published in Dawn, October 18th, 2021

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