Precedents where highest Pakistani, foreign courts reversed own decisions

Now that the Pakistani corruption watchdog, the National Accountability Bureau has decided file an appeal in the Supreme Court against the recent Islamabad High Court verdict suspending the sentences of the three Sharif family members in the Avenfield corruption reference, it remains to be seen if the country’s Apex Court reverses its own decision by upholding the subordinate court’s judgment or it set asides Wednesday’s decision.

Research conducted by the “Jang Group and Geo Television Network” shows that there have been a good number of quotable instances where both Pakistani and foreign Supreme Courts had reversed their own decisions.

A peek through the eventful history of Pakistan’s jurisprudence helps one find a few vital precedents where top courts had reversed their own verdicts.

In one such decision, convicted former Pakistani Premier Nawaz Sharif, now released on bail, was himself the key beneficiary. So, a grief-stricken Nawaz was second-time lucky on Wednesday.

Archival knowledge shows that in its decision dated May 26, 2009, the Pakistani Supreme Court had ruled that Nawaz Sharif, 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 of the same year.

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 had 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 (current Chief Justice) had 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 had lifted the ban on hunting of the endangered bird.

However, Justice Qazi Faez Isa had penned down a dissenting note opposing the bench's order.

The court held that there was "apparent error on the face of record" and had gone on toset aside its August 19, 2015 judgment.

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."

A precedent from Venezuela:

In April 2017, as the“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 maintained: “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 stated: “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.”

Some 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.

Not long ago, on June 21, 2018, a divided American Supreme Court had accomplished something that the US Congress couldn’t in the past 26 years — and that was to overturn a 1992 ruling that barred states from collecting sales tax from out-of-state vendors.

Business groups and lawmakers expect the decision to reverberate throughout the economy, affecting online retail giants, small businesses and brick-and-mortar stores, and that could build pressure for congressional action.

The US Supreme Court’s 5-4 opinion overturned the previous decision in Quill Corp v. North Dakota Case, which kept a rule that states could not require retailers to collect sales and use taxes unless the company had a physical presence in that state. Back then, the court had ruled that US Congress might be better qualified and have the ultimate power to resolve the interstate commerce issues.

The Supreme Court was actually split on who should resolve the issue. The majority concluded it was up to the Supreme Court to reassess its own decision, while the minority insisted Congress needed to be the one to act on an important question of economic policy.

On June 27, 2018, the US Supreme Court had overturned a 40-year-old precedent, affecting unions.

The American Supreme Court ruled 5-4 that nonunion workers cannot be forced to pay fees to fund public sector unions.

Third example; 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 equalled speech, and corporations had the same right to free speech as individuals.

Therefore, corporate political spending could not be illegal.

Fourth 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.