Developing jurisprudence by Saad Rasool

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:


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