After sitting on the original bench that took suo motu notice of allegations that the his son Arsalan Iftikhar was engaged in financial impropriety, Chief Justice Iftikhar Muhammad Chaudhry has recused himself from further hearings on the case. We do not know whether the chief justice changed his mind because of critiques in the media that he should remove himself from the case or due to opposition from his fellow justices.
However, the latter option is less likely to be true when one considers the endemic lack of dissenting opinions from justices on the court over the past few years. This absence of divergence in opinion is striking when one considers the legally complex and controversial issues confronted by Pakistan’s judiciary in its recent history. The lack of dissent today is also remarkable when one recalls the great history of justices who have written courageous dissenting opinions in controversial cases throughout the court’s past.
Justice Douglas of the US Supreme Court once said that the “right to dissent is the only thing that makes life tolerable for a judge of an appellate court.” Though this was a tongue-in-cheek comment, there is substantive value in a judge’s dissent as explained by Justice Brennan: “dissents contribute to the integrity of the [judicial] process.” and “to the marketplace of competing ideas.” If a judge is able to publicly voice his/her disagreement with the holding of the majority, this holds the majority accountable for the legal quality of their opinions.
Many in Pakistan regard the unity of the Supreme Court judges as proof that the institution is fiercely independent, and thereby able to punish corrupt politicians their crimes. In many ways, the media has painted the judiciary and lawyers’ movement as a homogenous fraternity collectively taking action against politicians. Therefore, a judge might be accused of being counterproductive by the media if he wrote a dissenting opinion in a case involving the executive-versus-judiciary show-down.
Chief Justice Claire L’Heureux-Dubéof the Canadian Supreme Court refuted the call for undivided decisions by the court, “in my view, one creates a false dichotomy by equating unanimous opinions with clarity and authority, while associating dissenting opinions with incoherence. Where there is profound disagreement among judges, the law itself is the greatest beneficiary of dissenting opinions…” Justice L’Heureux-Dubé went onto state that “dissenting opinions may contribute to improving the quality of judicial decisions by keeping the majority accountable.”
The chief justice further explained the necessity for dissents, “the voices of dissent on the court usually form the future of the court’s precedence.” Chief Justice Hughes of the US Supreme Court also argued that “a dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”
Pakistan’s Supreme Court has enjoyed a robust history of dissenting opinions which helped pave the way for future progress. One of the most famous examples was written by Judge A.R. Cornelius in Maulvi Tamizuddin Khan v. Federation of Pakistan. The majority of the court in that case accepted the doctrine of necessity, which has been cited subsequently to validate military coups. Perhaps sensing the potential for misuse of the doctrine, Justice Cornelius wrote an opinion rejecting the holding of the majority. It seems that Justice Cornelius was ahead of his time, as the judiciary seems to have eliminated the doctrine of necessity from its discourse today.
Another famous dissent was written by Justice Munir in Jibendra Kishore v. Province of East Pakistan where the court rejected a petition by minorities asking for relief from discriminatory practices by the government. Justice Munir rejected the technical approach used by the majority opinion which denied justice to the victim; he emphatically wrote, “I refuse to be a party to any such pedantic, technical and narrow construction of the Article in question.”
Such passionate words may one day give precedence for a justice to protect religious or ethnic minorities, and without such opinions, the jurisprudence may stagnate in the country.