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