‘If a judge unconsciously follows incorrect view, he has freedom to adopt correct view of law’

KARACHI: The Supreme Court has held that “if a judge has unconsciously followed an incorrect view of the law, he has by conscious application of mind the freedom to adopt the correct view of the law subsequently”.

This was part of the short order given by the Supreme Court in the case of Chaudhry Pervaiz Elahi vs Deputy Speaker, Provincial Assembly of Punjab, in which it nullified Deputy Speaker Mazari’s ruling of July 17. On the matter of arguments related to District Bar Association, Rawalpindi vs Federation of Pakistan (PLD 2015 SC 401), the SC has said that the submissions made by the counsel were not accepted.

In doing so, the Apex Court has relied on the common law device of ‘per incuriam’ -- loosely translated as: through lack of care or ‘through inadvertence’. The court in its short order said that the observations (in the District Bar Association Case) being relied upon with respect to Article 63A were discordant with the actual provisions (of the Constitution) and that -- even if they had binding effect -- they should be read as ‘per incuriam’.

In the past, the SC has held that the test for finding whether something is per incuriam is that either the court finds that there is a conflicting judgment of a larger bench or that there was an ignorance of a Constitutional provision, something that wasn’t considered at all, or there’s a gross misinterpretation of a Constitutional provision, which is what it seems to have been argued here in Tuesday’s short order. The finding of per incuriam in this instance drives home the point that even if it were a decision of the majority, which in the 2015 case wasn’t, it would still have been per incuriam and so relying on the paragraphs by the counsel for the deputy speaker was self-defeating because the argument in itself was based on a misinterpretation of the Constitution. And if a judge had initially signed off on such misinterpretation, there is room within justice to adopt a corrected view at a later date.