“Two things awe me most, the starry sky above me and the moral law within me” — Immanuel Kant
MORALITY and the law have never been more closely linked than when it comes to the question of whether the ends justify the means. This is especially true when analysing the Pakistani judiciary’s decision-making fundamentals.
Typically, in making any decision, a judge grapples with not only the legal aspects of the matter, but also with ensuring that legal interpretations yield equitable results. For certain judges, an equitable end is imperative. Although processes are useful tools to reach such a conclusion, the judge might view these as possible impediments to substantive justice, and as such, these are used to justify a desirable end as opposed to allowing them to determine the outcome themselves.
For others, the process is of overriding importance, and even if the process results in a lawful, but less than desirable result, that is the price for a non-arbitrary decision-making mechanism. In essence, the judge relies on procedure and process to insulate his or her legal reasoning from daily pressures and influences.
The struggle between these two worldviews is real and polarising. Written judgements signed over the decades showcase these varying approaches, with process-driven verdicts arguably focusing more on procedural elements of the law, and end-specific judgements concentrating on the equities of the decision itself.
What determines which approach of a judge?
The pertinent questions relate to: what determines which approach of a judge? Do all judges have a one-dimensional approach that is applied to all situations? Or do their approaches evolve and adapt to the circumstances? In answering these questions, two factors seem to be constants in determining which approach is adopted by a judge when confronted by questions of constitutionality and public interest — firstly, populist sentiment, and secondly, the power dynamics of the establishment and stakeholders vis-à-vis popular sentiment.
Regarding the former, popular sentiments of the population may figure significantly in decision-making at any particular time. This is not to say that the judiciary renders its decisions merely on the touchstone of populist rhetoric and devoid of any legal reasoning, but that such sentiments do hold sway in determining what an equitable end may be, and coincidently, may also garner greater legitimacy for the judiciary.
In relation to the latter, at no point does it seem that popular sentiment is solely at play in determining what may be an appropriate approach. Power dynamics in the corridors of power vis-à-vis popular sentiment are also seen to have a role in determining where a justifiable end may lie and whether any decision shall result in more legitimacy for the judiciary. In essence, where the influence of the formal and informal power structures is far more overwhelming than the intensity of populist sentiment, equitable ends tend to gravitate towards decisions institutionalising a sense of stability in otherwise tumultuous times. Such considerations tend to augment existing power structures ie the status quo.
All in all, the ‘equitable result’ is hostage to the overall circumstances in which the judgement or decision is rendered. On account of the ever-changing nature of such influence over the decades, one can see radically different decisions being rendered at different times in our history.
That is perhaps why the Supreme Court can in one breath validate martial laws as revolutionary acts, whilst later on denounce the same as unconstitutional and treasonous. It may also explain why, despite the illegality of the 1990 Benazir Bhutto government dissolution, the government was not restored, whilst in dealing with the 1993 Nawaz Sharif government dissolution, the Supreme Court not only held it to be illegal, but also restored Mr Sharif’s government.
It also explains why the Supreme Court, despite having a clear aversion to military courts in earlier judgements, stepped in and sanctified them in a decision rendered after the horrendous APS tragedy. It also may help us put into a theoretical framework the perceived dissimilarity of response in relation to the reference against the former chief justice Iftikhar Chaudhry, and the present scrutiny of Justice Qazi Faez Isa.
On account of this link and the tension among public sentiment, the prevailing power structures and the overall circumstances, the decisions of the judiciary appear to adapt and evolve according to the existing situation. Being intrinsically linked, it appears that in order to create greater consistency in the decision-making process of the judicial set-up, it is also necessary that greater stability and balance be maintained in the overall power structures of the country.
The writer is a lawyer.
Published in Dawn, January 17th, 2021