Conformist Judicial Culture? | Saad Rasool

Pakistan’s checkered judicial history makes for an interesting read into our national culture and philosophy, as much as it does into our jurisprudence. We have had exhilarating highs and debilitating lows. Our Courts have condoned four different military dictators, while also leading the charge against democratic interruptions. The honorable judges have evolved a potent jurisprudence of constitutional fidelity and the rule of law on the one hand, while ignoring all constitutional inconveniences to develop the Iftikhar Chaudhary brand of suo moto activism, on the other. The roster of our Courts has boasted intellectual giants like Justice Cornelius, but has also had to suffer the reign of much lesser mortals. We have seen extended periods of judicial deference to the government and then exceptional moments of intrepid judicial independence.

As a result of this rollercoaster journey, however, we today have a judicial culture which, despite its many strengths, requires some critical review and re-thinking, especially at the High Court level.

First and foremost, our judicial paradigm – its structure as well as culture – is less than encouraging for the honorable High Court judges to make decisions that rattle the far-reaching vested interests of our overall polity.

To this end, despite the judicial appointment process having been entrusted to the well thought out paradigm of Article 175A of the Constitution, each judicial nominee has to pass the murky test of undisclosed ‘intelligence reports’ for elevation. This touchstone alone frequently dissuades several lawyers, with aspirations of being elevated to the Bench, from taking on cases that might invite the wrath of the establishment or the ruling party.

Even after elevation, the Additional Judges of the High Courts face the uncertain prospect of confirmation, by the Judicial Commission, which frequently takes into account, inter alia, feedback from members of the Bar, and other stakeholders, in order to arrive at its decision. Consequently, during this uncertain time the Additional Judges of the honorable High Courts have an incentive to avoid making daring decisions that might cast a shadow on the prospects of confirmation, forcing the culture of the Bench to be mellow and conformist.

Once confirmed, these pressures subside a little, though not entirely. Uncertain Bench formations, adjustable case allocations, and a dire need to be instep with the honorable Supreme Court, all chip away at the inherent independence, which must be the hallmark of judicial character. Resultantly, the one sure model of ‘success’ for each Judge of the honorable High Courts is to adjudicate cases as conventionally as possible. To take no liberties with the arc of jurisprudence. To say or decide nothing that shifts the balance of our governance. To embody nothing unorthodox. In fact, decisions of the honorable High Courts, even in the very recent past, that have fundamentally changed the structure of power in our democracy, of devolution, of the rights discourse, have irked discontent. Bold judgments which challenge the status quo, altering ‘business as usual’, have evoked considerable criticism of the author judges, calling into question their judicial motives and impartiality.

Somewhere along this trajectory, which celebrates conformity over independence, we have discouraged the cultivation of our homegrown Antonin Scalia and Oliver Wendell Holmes. We have diminished the virtue of diversity in judicial opinions. The audacity to differ with other (senior) members of the Bench has been all but extinguished. We no longer produce that extraordinary dissent whose time has not yet come, but will form the basis of a majority opinion, one generation from today.

It is time for our judicial culture to learn from the peers in other liberal democracies. In fact, the very recent opinion of the Supreme Court of the United States, in the case concerning legalization of gay marriages, serves as valuable reminder of the necessity of bold decisions, as well as the virtue of extraordinary dissents. Writing in his characteristic flair, Justice Scalia has penned a dissenting opinion, which (whether one agrees with it or not) restores and strengthens the reader’s faith in judicial independence.

Calling the majority opinion “lacking even a thin veneer of law”, being “profoundly incoherent”, and “in a style that is as pretentious as its content is egotistic”, Justice Scalia concludes that the majority’s opinion diminishes “Court’s reputation for clear thinking and sober analysis”, and evidences a “deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretations.”

This kind of grit and independence (belligerence?) expressed by a Judge of the Court in regards to fellow members of the same Bench in no way diminishes either the esteem or the potency of the honorable Court. What it does, however, is strengthen the soul of jurisprudence by establishing that judicial independence has not been sacrificed at the altar of institutional solidarity, and that the ability to deliver bold opinions is alive and kicking as an integral part of a pluralistic democracy.

For far too long, have we lived under a judicial umbrella that considers conformity a virtue. For far too long have the contours of our jurisprudence been defined by tepid pens. For far too long have we allowed vested interests to constrain the expanding frontiers of judicial power. For far too long have the bold and the brilliant lived a life of cloistered judicial virtue.

It is time for us to break these shackles of conformity and embrace the full measure of who we are as a constitutional democracy. It is time for us to cultivate a judicial culture that rediscovers the essence of independence. It is time for us to enrich the muchness of our laws, and deepen the meaning of our freedoms. It is time for us to celebrate the dreamers over the sages.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.

Conformist Judicial Culture? | Saad Rasool

Source: http://nation.com.pk/columns/05-Jul-2015/conformist-judicial-culture