Judgments, justice and law
Judgments of the
superior court are primarily about three things: 1) deciding a dispute
between parties (or, in other words, doing justice and providing
relief); 2) ensuring adherence to the letter and spirit of the law; and
3) developing jurisprudence (which in effect is the corpus that forms
the ideological basis for how we approach rule of law).
Each one
of these is just as important as the other. And if any of these
constituents is deficient, the entire paradigm of law suffers.
Judicial
pronouncements have become the epicentre of all politico-legal activity
in Pakistan over the past half a decade. And that is a good thing –
finally, ideas of legality and ‘constitutionalism’ have become a part of
the mainstream discourse. But this levies an even higher (more solemn?)
responsibility on our legal fraternity – lawyers as well as the
judiciary – to be mindful of the nation’s gaze upon their activities
and, as a result, to back their activities and decisions with a coherent
and meaningful body of jurisprudence. In other words, it is no longer
sufficient to just pass a judgment that is ‘correct’ (and even popular);
it is now important to make sure that the authority of law is
supplemented with reasoned jurisprudence, which can be debated, argued
and eventually absorbed into our national conscience.
In several
cases, the honourable Supreme Court has done a tremendous job in this
regard. Whether one agrees with the conclusions of the honourable judges
or not, the judgments in Sindh High Court Bar Association case (the
Judge’s case), or Mubashar Hassan’s case (the NRO case), or Yousaf Raza
Gilani’s conviction, were all reasoned judgments. And by this virtue,
they could be understood, agreed with or criticised. But there are
thousands of other judgments (especially from the provincial high
courts) where important decisions have been handed down, without much
clarity on the reasoning behind them.
One example of this is the
(interim) order, passed two days ago by the honourable Sindh High Court,
suspending a notification to ban motorcycles in Karachi during
Muharram. This, in my humble understanding of the law, is a good order
(legally). The government’s notification was violating the fundamental
rights of citizens who travel by motorcycle, and the court stepped in
for their protection. Simple enough.
But at its core, the
jurisprudential issue in the case was deeper than this. The question
before the court, in all probability, was one that involved a balancing
exercise between two (or more) competing fundamental rights. On the one
hand was the right of the motorcyclists as to freedom of movement and
enjoyment of public roads (Article 15 of the Constitution), perhaps even
infringement of their right to trade/business (Article 18),
non-discrimination (Article 25) and an extended argument in terms of
violation of their dignity (Article 14). Competing with these, on the
other hand, in light of a credible threat of terrorist activity via
motorcycles, was the right to life and security of other citizens
(Article 8) and the government’s prerogative to pass directives to
maintain law and order. This sets the stage, and the honourable court
had to decide which claim would prevail, and why.
This is a
classic case of something called the ‘Doctrine of Proportionality’ in
constitutional law. The doctrine was developed most emphatically in the
Canadian case of R v Oakes [1986] 1 S.C.R. 103, and was later followed
in an elaborate manner in the Israeli case of The Beit Sourik Case (HCJ
2056/04). The later of these two, the Beit Sourik, is a close analogy to
the petitioners challenging the motorcycle ban in Karachi. The Israeli
case was a challenge the building of a ‘protection wall’ around the town
of Beit Sourik, which the Israelis claimed was necessary for the
‘protection of their life and property’. On the other hand, the
Palestinian petitioners claimed that the building of the wall prevented
them from freely traveling to their villages and farms. In deciding
whose rights would trump the other, the High Court of Israel laid down a
four-step doctrine (now followed internationally) to balance the
concerns of these fundamental rights. The court held that first it was
to be determined if the violation of someone’s fundamental right was
being done for a ‘legitimate purpose’. If so, the second step was to
determine whether there was a ‘rational connection’ between the steps
taken and the fulfillment of the said legitimate purpose. Third, the
court was to determine whether ‘milder means’ were available to achieve
the same purpose. And finally, the court was to apply its judicious mind
to balance the competing rights to determine whose claim would prevail.
This four-step process is now the ‘Doctrine of Proportionality’ in international constitutional law.
The
honourable Sindh High Court, in all probability, employed similar steps
to suspend the notification of banning motorcycles. The court perhaps
concluded that there were ‘milder means’ available to counter terrorism
than the banning of motorcycles. Except, the rationale has not been
disclosed (and is hidden, perhaps with the honourable Chief Justice of
Sindh High Court alone). For our consumption (in terms of
jurisprudence), we simply received a short order without disclosure of
reasoning that suspended the order. And as a result, even though
(perhaps the correct) decision was reached, the law was robbed of its
jurisprudence. The government appeared before the court and withdrew the
notification, as a result of which the matter has now effectively
become infructuous.
Similar exercise took place in the case of
banning YouTube some months back. There too the issue was competing
fundamental rights: on the one hand the right to be protected from
blasphemy; and on the other, the right to use the website and have
access to knowledge and information through it. There too, on a verbal
inquiry/direction of the court, the website was banned. The
jurisprudence stayed silent.
The fact that judicial activity is
the focus of so much national press and attention must be seen as an
opportunity for the legal fraternity to impart comprehensive and
ideological jurisprudence into our society. Because, in the long-run, as
we move past the temporary relief provided by summary orders, the only
thing that would matter is the body of jurisprudential principles
developed for our collective guidance.
The writer is a lawyer
based in Lahore. He has a Masters in Constitutional Law from Harvard
Law School. He can be reached at: saad@post.harvard.edu