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Deficit of judicial dissent

Published Jun 09, 2012 12:47pm


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Supreme Court full-bench hearing – Illustration by
Supreme Court full-bench hearing – Illustration by

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.

Today, major issues are being decided by the Supreme Court that should open the door for judicial dissent. First, the Chief Justice taking sou motu notice of his son’s corruption allegations threatened the fairness of the trial Arsalan Iftikhar would receive. The father of a suspect cannot serve as an impartial judge because he could either give his son preferential treatment or subject his son to an unjust punishment to send a message to the public. Neither option leads to a proper execution of justice, which is the principal objective for the apex court.

Justice Aslam Riaz wrote a dissenting opinion in 1989 that embodied the same perspective as the code, where he stated, “the dignity and respect of the courts is neither engendered nor protected by the Law of Contempt, but by the conduct and impartiality of judges themselves.” Therefore, Justice Riaz said that a judge with any personal financial interest in a case “is ipso facto disqualified from hearing it and no option is left but to decline to sit on the bench deciding it.”

We cannot be certain whether the Justices raised this legal precedent in front of the chief justice and recommended his recusal in his son’s corruption case, but the CJ has rightly stepped down. One instance we are certain that there was no disagreement amongst the Justices on was the Memogate controversy with former Ambassador Husain Haqqani. After the decision was passed, many claimed that Court was being manipulated by the military and Asma Jahangir stated,“I was expecting at least one dissenting voice against the judgment, but I did not see any ray of hope in the court today.”

Even though Memogate involved legally complex issues on which reasonable-minded lawyers could disagree, like the jurisdiction of the court, there was no disagreement amongst the bench. Jahangir’s hopes for a dissent were dashed in the current climate of Team PPP versus Team Judiciary, since the dissenting judge would be grilled by the media and jurists alike if they wrote a dissent that incidentally favoured President Asif Ali Zardari.

One method that can be used to foster heterogeneity of opinion on the court is by selecting a more diverse array of justices. UN Special Rapporteur Gabriel Knaul recently criticised the lack of female representation on the Pakistan’s Supreme Court. As such, the judicial commission should appoint more women, religious and ethnic minorities to high court, and eventually supreme court benches. While the court should continue to maintain its independence from the political branches, it could be assisted by a greater assortment of legal opinions on important constitutional issues.

Justice Brennan provided an astute observation, that “dissent for its own sake has no value, and can threaten the collegiality of the bench,” and therefore, attempting to pit the justices against each other is ineffective and disrespectful to the court. Yet, in the next few years, several justices will exit the court as their terms expire, and special attention should be paid to fostering the development of an ideologically diverse apex court.

The writer holds a Juris Doctorate in the US and is a researcher on comparative law and international law issues.

The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group


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The views expressed by this writer and commenters below do not necessarily reflect the views and policies of the Dawn Media Group.

Comments (19) Closed

Cyrus Howell Jun 09, 2012 04:41pm
"The Central Intelligence Agency owns everyone of any significance in the major media." -- William Colby (Former CIA Director)
Cyrus Howell Jun 09, 2012 04:35pm
"We'll know our disinformation program is complete when everything the American public believes is false." -- William Casey, CIA Director (first staff meeting, 1981) + With laughter all around, no doubt.
Cyrus Howell Jun 09, 2012 04:31pm
"When you control opinion, as corporate America controls opinion in the United States by owning the media, you can make the masses believe almost anything you want, and guide them as you please." -- Gore Vidal
Abdullah K Jun 09, 2012 04:23pm
Mr. Hussain; Suo moto notices are the only venue open to appellate court. Executive & legislative branches of the government are totally dysfunctional, half hearted action by federal as well as provincial governments are travesty of justice. Take for example 12-14 people murdered in Karachi about two weeks ago when a peaceful procession of one party was fired up on resulting in the death of men, women 7 children. No action has been taken by PPP government. Murder , if you treat it like a minor traffic violation, what choice do you have except suo motu by SC.
BNS Jun 09, 2012 03:10pm
Well noted observations. Lack of diverging opinion on such complex issues, seem unusual.
NASAH (USA) Jun 09, 2012 02:59pm
The lack of dissenting opinion has been bothering a lot of us outside Pakistan. Whether a Dogar court or a Chaudhry court there is always a unanimous decision never a dissenting voice which is a norm here in the United States and in other Western countries even in India. It gives the impression that judiciary under the leadership of the chief judge turns into a judiciary 'party' where dissent against the leader is frowned upon. Judges are supposed to judge cases on the merits not 'party' loyalties.
md1 Jun 10, 2012 06:01pm
Pakistan has seen military dictators, politicians dictators... now is it time for judicial dictatorship?
Junaid Akbar Jun 10, 2012 08:02am
I am so amazed, flabbergasted, frustrated, and angry by the fact that the some elements in the electronic and print media are unnecessarily siding with Mr. Iftikhar Chaudry. I still remember that day when I stood before him, Justice Khalil Ramdey, and Justice Ghulam complaining against one of the Additional Registrar of the Peshawar High Court DIKhan Bench. I had some electronic and documentary evidence against the said Additional Registrar. Mr. Chaudry without giving me and my lawyer an opportunity to speak and explain himself dismissed my application.
Amjad Wyne Jun 10, 2012 02:08pm
It is a complex question but generally speaking Sharia courts exist in areas where the government has failed to provide such services. Then there are the issues of expense, trust and time. Individuals may prefer to go to a local Imam or clergy to get their issues resolved even when they had the option to go to a regular court. That said, the issue is not the coexistence of two justice system, the issue is that you cannot get justice in Pakistan irrespective of the system.
Razzaq Jun 09, 2012 07:14pm
Can some one please throw a light on Pakistan having two parallel judicial sytems, a civil judiciay and an islamic known as a sharia system. How can any one expect a fair judgement under the two systems?
Amjad Wyne Jun 09, 2012 08:02pm
Our justices did not come from the sky - they are no different than PPP, MQM, PML or others - Anyone dissenting is out. Perhaps the only silver lining is that our courts are not being run by families - at least not yet.
AAK Jun 10, 2012 12:19pm
Misuse of courts, partison judges pushed present SC to act in unison on every issue. Brother judges acting as unfied force . It is "us against them'.
Aaron Upright Jun 10, 2012 12:35pm
Firstly there is no parallel system, this is in answer to some really illinfomed statement above. As to the article itself, it's clear that the writer has never spent much time in practice. You need to undertstand that despite the media coverage, the Supreme Court only hears a handful of cases each year and these are invariably ones on points of law of matter of general public importance. These cases clarify and define the law and dissenting notes (not "opinions" as our US educated writer refers to them) tend to cause uncertainty in law. Which is why the SC has attempted to avoid this by getting the Judges to draft one narrow judgement which they can all agree with. Even when they all agree, it can cause problems. A few years ago, all 5 judges on a bench agreed that a lady appellant had commutted murder but gave different reasons for it and thus the law of murder remianed in considerable doubt for some years. Our US centric writer needs too widen his horizons,
Keti Zilgish Jun 09, 2012 08:21pm
This issue is directly related to that of how the judges of the supreme court are appointed. In USA they are voted upon by people in the national bicameral (both are elected by the public) legislature whereas such is not the case in Pakistan where the unicameral (defacto at the national level and dejure at the state) option has been resorted to, hence the meaninglessness of the legislative oversight of the judiciary as evolved in the anglo-saxon world.
Hali Jun 10, 2012 12:08pm
I would say that the supreme court which hanged Bhutto was more independent than the current supreme court with respect to dissent. There were atleast 3 dissent voice against the majority of 4. I would also like the author to highlight the fact that when supreme court becomes the trial court or rather the police station where everyone is lodging FIR then where is the due legal process. Supreme court is trying to be the prosecutor, as well as trial court and then trying to pass the final judgment. Where is the right of appeal for the persons involved, whether u take the memo case or any other cases taken up by the supreme court.
shankar Jun 09, 2012 11:02pm
A thought provoking article! This definitely is a serious question. Where is the dissent amongst the judiciary? Is there a judicial domination by a section within the judiciary?
sajid farooq Jun 11, 2012 06:19am
MR. IFTKHAR is doing his job very well but our corrupt well army clerics don't want such judiciary that is against their will.i hope judiciary is improving day by day.
jibran Jun 11, 2012 06:33am
There was a famous letter circulated by Naeem Bukhari back in Feb. 2007. should not we examine it in a dispassionate, detached way ?
anonymous Aug 04, 2012 11:35am
As CJ has vast authority for appointing/transferring and influencing over court matters then how another judge working under his control dare to confront him. Actually it seems one man show lead by CJ.