SUPREME Court judgements in Pakistan overwhelmingly rely on cases from foreign jurisdictions. Foreign case law most often cited include decisions from Indian, British and American courts, and to a lesser extent from other common-law jurisdictions, including Sri Lanka, South Africa, Canada and Australia. There have been instances, where our Supreme Court has cited cases not only from US federal courts but even US states’ courts. Such reliance on foreign court decisions is ultimately unnecessary and counterproductive.
As a common-law jurisdiction, SC cases are an independent source of law. In interpreting the Constitution and acts of parliament (or, for that matter, presidential ordinances) and in applying them to the facts before it, the SC gets to create law. The decisions of the SC binds (or theoretically should bind) its future judgements, unless a larger bench of the apex court subsequently rules differently. At the same time, these decisions provide direction and guidance to the lower courts in resolving similar legal and factual disputes.
When a matter of first instance arises — ie the SC is asked to resolve a legal dispute that prior decisions of the court have not already passed a judgment on — the apex court has the opportunity to lay out the law of the land with respect to that issue. In common-law jurisdictions, this is a unique obligation and a privilege accorded to the members of the superior judiciary.
As an example, the Constitution guarantees the conduct of lawful trade or business as a fundamental right under Article 18. It does not, however, have a provision that explicitly states whether a regulatory body can or cannot impose restrictions on the fee charged by private schools. In interpreting and applying Article 18, the SC can, however, decide whether such a restriction on the fee charged by a regulator is or is not permissible under the Constitution, and whatever decision the court reaches becomes the law.
Our superior courts do not have a real legal tradition.
What should the courts look at in order to reach its decisions? The SC may, for instance, rely on an approach rooted in textualism, which would require it to begin with the text of Article 18 itself and derive conclusions from the text alone. It may also look at the intent of the drafters, and try to surmise what the drafters had in mind in granting this right to citizens — an approach called original intent. Or, alternatively, it may rely on myriad other approaches such as original meaning, progressivism, etc — but still remain within the realm of Pakistan’s case law.
Additionally, the SC can also seek guidance from its own precedents — the way it has decided previous cases where, for instance, questions of regulation of a business were presented — and draw principles from those cases. It can extrapolate a principle from one or more of the cases, or distinguish all of the previous case laws and create a new principle. Similarly, it can look to the high courts, and see how the judges there have sought to resolve similar questions of law and fact, and decide whether it is persuaded by their judgments or not. None of these approaches are exclusive; any or all can be employed.
There is yet another easier but counterproductive way of resolving disputes. The SC may rely on the decisions of judges in foreign jurisdictions and incorporate the language and holding of those cases, and ultimately make foreign law a part of our jurisprudence. The lawyers advocating before Pakistan’s superior courts regularly search for similar fact patterns in Indian courts and other jurisdictions, draw out the proposition that support their client’s positions, and present those cases as if they are independent sources of law that our superior courts are bound to follow. The superior courts, in turn, may feel justified in ruling one way or the other on the basis of those foreign cases, since they can peg their hats on the judicial systems of India, the UK or other jurisdictions, often without often providing adequate justification as to why such reliance is even necessary.
There is nothing inherently wrong in copying and pasting another jurisdiction’s law in the superior courts’ decisions, since there is no need to reinvent the wheel at every turn and twist, especially when there is such a huge backlog of cases to adjudicate. But this abnegation of judicial duty to bring an original bearing on the matter, rooted in the cultural context of one’s own society, comes at a cost. Pakistani superior courts do not have a real legal tradition — no original legal thought, doctrines or approaches.
No wonder, then, that the superior courts of other jurisdictions from whom we borrow excessively, including Indian courts, rarely refer to our cases. There is nothing much original that we have to offer anyway since our legal doctrine is more or less a patchwork of borrowed language from Indian, UK and US courts.
The writer is an associate at Ajuris Advocates & Corporate Counsel.
Published in Dawn, September 27th, 2019