With Apologies To Judicial Supremacy

With Apologies To Judicial Supremacy

On the 17th of April, 1905, the Supreme Court of the United States decided Lochner v. New York, a case concerning the regulation of the minimum number of working hours for bakers by the state of New York. At this point in time, the working hours that some bakers were being subjected to involved twenty-four hour shifts. The state’s attempt to prevent exploitation of workers by their employers was struck down by the Supreme Court as a violation of the Fourteenth Amendment. The Supreme Court somehow found a ‘general right to make a contract […] is part of the liberty of the individual protected by the Fourteenth Amendment.’ In sum, the New York law violated the ‘freedom of contract’, despite the fact that such a right is never mentioned in the Fourteenth Amendment.

This precedent would be used by an activist Supreme Court to strike down laws that were not only needed to counter the Great Depression, but were also laws that enjoyed vast support among the people of the United States and their elected representatives.

Today, Lochner is universally panned as a judicial decision where an activist judiciary fabricated a right which allowed it to interfere in economic regulation. The Lochner era also shows how the subjective views of judges, if unconstrained by an appreciation of constitutional text and the separation of powers, can have enormous repercussions on a nation. As Ian Millhiser writes in his book ‘Injustices,’ the majority in Lochner viewed democracy as a threat to liberty, resulting in the justices giving little regard to the fact that the nation, through the democratic process, constantly tried to counteract the decision given in Lochner. The result: a paradoxical situation where the unelected had more say in economic policy than the elected.

This case is but one example of the reasons to be wary of judicial activism. It also portrays the problematic nature of allowing ourselves to believe that judicial supremacy –not democracy – is the ultimate solution to all our problems. This is a point very relevant to Pakistan, where the Chaudhry Court unleashed a string of opinions ripping the doctrine of the separation of powers to shreds by an excessive interference in executive policy and an adherence to populism. Examples of this are abundant from the Chaudhry Court years: the Memo Commission (a matter of pure foreign policy), asking an insolvent government to slash flour prices, blockading attempts to solve the country’s energy shortage, and the list goes on.

But trends like these tend to snowball. Justice Chaudhry did not take issue with making judgments based on his own moral convictions. Take the case against Atiqa Odho: allegedly found in possession of alcohol. The Supreme Court took suo motu notice, which begged the question: how was this a matter of national importance and fundamental rights?

The fact that these issues are missed by people in Pakistan is brought to light by the support shown to the tenure of recent Chief Justice Khawaja. If anything should worry us, it was his support for striking down the twenty-first amendment to Pakistan’s constitution by relying on the basic structure doctrine. Article 239 (5) of the Constitution of Pakistan states: ‘No amendment of the Constitution shall be called in question in any court on any ground whatsoever.’ The fact that anyone would think, despite this provision, that there is still an ability to strike down a constitutional amendment shows a moral crusade to shape the Constitution according to ones own subjective views – something we should all be wary of.

Not least, it shows an unelected judge trying to impose his will on a democratically enacted constitutional amendment. Whether we hate or love the twenty-first amendment has no bearing on whether it is ‘legally’ valid. This is a fact that judicial activism fails to appreciate.

Finally, both Justice Chaudhry and Justice Khawaja failed to understand that change in a democratic system comes gradually and through the process of the vote. Although judicial decisions may be a welcome catalyst for this, real change can only come through the democratic process. Take the seminal case of Brown v. Board of Education which ended racial segregation in schools in the U.S. Although, an important catalyst, true desegregation would take an excruciatingly long time to manifest itself. Ten years after Brown, Justice Black would state, ‘There has been entirely too much deliberation and not enough speed.’ Similar facts should have been weighed by Chief Justice Khawaja before ruling that the entire country needed to return to its roots and adopt Urdu.

The solution to all of this is, most importantly, a change in our discourse. There is not enough debate on questioning excessive judicial interference in areas best left to the legislature or the executive. The debate requires us to rethink the role the judiciary is supposed to play under our Constitution: an appreciation that it is but one organ in the government which must realize that it is not above the executive or the legislature, as well as an examination of the Constitutional text and adherence to what it says rather than what judges might want it to say. Some sort of legal test must be established by the judiciary itself when it is questioning affairs of pure policy.

The judiciary must protect the fundamental rights enshrined in the Constitution, but where these rights are not involved, and the matter is one of policy, the Court would do well by adopting the ‘rational basis test’ used in the U.S. The test would allow the judiciary to look at issues relating to policy and ask whether the government’s actions are ‘rationally related’ to a legitimate government interest. Through the use of judicial restraint in separation of powers issues – an analysis of the constitutional text and its historical context – judges can be constrained from imposing their own subjective views on what the Constitution means.

It is not proposed that the judiciary swing to the other side of the jurisprudential spectrum and turn meek. There is enough extremism in this country, with its oscillation between extremes rather than a synthesis of the ideas in between, to show us why such views are a bad idea. However, we need a balance, we do not wish to exchange democratic self-governance with judicial supremacy.

Lest we forget the greatest contribution that judicial activism has given to this nation: the doctrine of necessity.

 

The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.

Hassan Niazi

The writer is a practising lawyer from Lahore and has also taught Jurisprudence at University College Lahore. He holds an LL.M degree from New York University and tweets at @HNiaziii



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4 Comments

  1. Saud Ahmed Qureshi said:

    I will come up with the proper comments on the judicial system of Pakistan..and have written a research paper to upgrade the system according the needs of Pakistani. This system was brought from across the border in 1947 and does not full the conditions according to the present needs.. I will share it if you send an email because I find a friend who have the same sentiments as me.. .

    • ABDUL BASIT SUHAIL said:

      PLEASE MAKE A SERIOUS ATTEMPT TO HIGHLIGHT
      THE MOST DEFECTIVE JUDICIAL SYSTEM IN PAKISTAN–
      WHICH HAS MISERABLY FAILED TO DELIVER –JUSTICE–
      TO THE POOR AND HELPLESS PEOPLE–

  2. Saud said:

    A Failed Judicial System Which Came Across the Border in 1947

    The writer of this article is the former employee of the judicial system and have experienced many difficulties in obtaining justice from it which came across the border in 1947. Despite of the fact and requesting at the higher level of the Judicial Management and the Bureaucracy to review the system which is not according to the present needs and thus the writer of this article has been compelled to put as a documentary evidence for the rest of Pakistan.

    Brief History:

    The parents of the writer came across the border in 1947 and was allotted land in lieu of their claim, land measuring 54 Kanal 15 Marlas in Mozza Khan Dak, Tehsil and District Rawalpindi and the family income was based on farming and cultivation. In 1962 land measuring 54 Kanal 15 Marlas was acquired vide memorandum/letter no. 1656/LAC dated 12 August 1960 by the Land Acquisition Collector, Rawalpindi during the regime of Field Marshal Mohammad Ayub Khan as compulsory acquisition of land for the extension of Main Runway Chaklala Airport, Rawalpindi (a specific project which has never been implemented) through an award announced by the Commissioner, Rawalpindi vide Notification No. M/VII.236 /EA/60 dated 06.05.1961, Whearas Khasaras of this acquired land had never been published in gazette of Pakistan. The writer filed a civil suit in the court of SCJ, Rawalpindi, titled SAQ Vs; MOD, ETC (Suit for Declaration, Possession and Permanent Injunction) Suit No. 321/2012, date of Institution 12.7.2008 decided by Civil Court, Rawalpindi on 21.12.2012. The parties were summoned by the court and after due course of processing respondent No. 1 & 2 did not appear before the learned court despite issuing proclamation in the newspaper and as such exparte proceedings were passed by the learned court on 23.12.2010. During the proceedings of the said case respondent no. 3 raised objections and stated in writing before the learned trail court on 27.10.2008 “The respondent is not in possession of the suit land and is based on misunderstanding is neither owner nor in possession of suit land and their name from the defendant list be deleted.” Defendant no. 3 also presented a non-calendar witness before the learned court who stated on oath that land is being used jointly with the collaboration of another party (ABC) for the purpose (DEFG) whereas their non-cooperation revealed during the visit of Commission appointed by the learned trial court and were not present on the site intentionally and with malafide intention. The respondent No. 1-3 were not authorized to misuse the land and to convert the land into thickly populated areas as respondent no. 1 in a civil suit stated and made their strong commitments before the learned courts of Land Acquisition Collector, Rawalpindi as follows:

    Urdu script: Sial key zameen khati barri key jana wali zameen hay oor choon kay woo capital area main eye howii haa or capital area main mazeed kisee kisam key amarat tameer karna CDA key taraf saa mamnoo karar dee gai hain, lehaza woo zameen batoor jiadad sakni istamal nahee kee jaa sakti.”

    Thereafter a reference was filed against the father of the writer/plaintiff in 1963 before the Lahore High Court of West Pakistan stated by the respondent no. 1 as follows:

    “There exists no Abadi in the neighbourhood of the land in question nor are there any development facilities available. The trial court has proceeded on conjectural basis in assessing the value of the land in excess of the Award especially in the absence of the spot inspection. Having regard to the situation of the land in question, there is no scope of its being built upon or being included in any extension of abadi in view of its close proximity to Air-field and on account of prohibition against construction and against conversion of land to other uses……. ?”

    And whereas a gazette notification was also issued by the Central Government vide no. 711/62 dated May 11, 1962/Part III as mentioned below:

    a) no variation shall be made in the ground level, and no building, wall or other construction above the ground level and no obstruction or ditch shall be permitted in the clearance area;

    b) No building, wall bank or other construction above the ground level shall be maintained, erected, added to or altered in the Funnel Area, Area of Restricted height, Transition surface, otherwise than with the approval of competent authority…”

    Three of the respondents violated Rules and regulations, miss-conducted and by passed the Acquisition Rules 1894, 1983 and abrogated the Constitution of Pakistan 1973 by misusing the said property acquired by them and have illegally constructed commercial & non commercials buildings on the suit land willfully with the connivance and collaboration and by their illegal acts as reported by the writer of this article, Halqa Patwari, Halqa Gardawar, and Commission in their statements before the learned trial court. Keeping in view the sensitivity of the case, the writer requested the LHC, Lahore and SCP, Islamabad to monitor the said case and to decide the case according to the National Judicial Policy and directions were issued by the LHC, Lahore to decide the case on 11.12.2010 accordingly, but was lingered by respondents 1-3 in the said case with the connivance and collaboration of unknown hands best know to them. During the pendency of the said case the writer obtained attested copies of three documents, a) (Application u/o 39, rule 1&2 Read with Section 151 (Written reply); b) (Application u/o 39, Rule 1&@ Read with section 151 (Counter Affidavit); c) Written statement on behalf of defendant no. 3) from the coping agency, Office of the District and Session Judge, Rawalpindi on Feb. 23, 2011 which were presented by defendant no. 3 , unsigned documents by the competent authority before the learned trial court and the writer requested the Honourable LHC, Lahore to conduct an enquiry for the tempering of judicial records by respondent no. 3; whereas the writer have presented written statement before the enquiry officer SCJ, Rawalpindi nominated by the LHC, Lahore on Feb. 1, 2014. Respondent no. 3 presented unsigned and unauthorized documents without signatures of the competent authority and have committed a white collar crime, but also tempered the judicial record/documents as analyzed by the petitioner by obtaining another attested copies of the aforesaid documents on Jan. 27, 2014 from the copying agency, Office of the D&SJ, Rawalpindi duly signed by the competent authority (defendant no. 3/AM)

    The trial court entertained/accepted two counter affidavits on the same date i.e. 2.2.2013 as initialed by the learned judge with different signatures of defendant no. 3. (AFK/AM). on behalf of defendant No. 3 certified by the different Oath Commissioners with different dates i.e. 8.2.2011 and 8.6.2012 respectively without any justification which reveals that undue favor was provided to defendant No. 3; Whereas the petitioner feels height of unlawful acts, violations of High Court Rules and Orders which were beyond the expectations of petitioner and have curbed the petitioner into mental agony & destruction. The respondent no. 3 was a resourceful , powerful and influential and have thus succeeded by using illegal means by one way or the other and by tempering the judicial record, have therefore, damaged, tarnished, shaken the image of judicial system in the eyes of writer at district and provincial level and have lost the confidence being departments Government of Pakistan. On the other hand the writer was not informed by the findings of enquiry despite of his subsequent request and is not hopeful of any justice at District/Provincial level due to the influence of respondents 1-3 as stated above. The writer filed a revision before the D&SJ, Rawalpindi with in time and was accepted for hearing, thereafter record as summoned. On 22.4.2014 the counsel for the writer presented written arguments before the learned court and requested the learned court to obtain the written reply and para wise comments from the defendant in return who were failed to submit the same. The order passed by the learned court was against the law and was not according to the issues framed by the lower court dated 03.12.2012 which needs to be addressed in lawful manner. The learned trial court did not relied upon the evidences of the writer , Halqa, Patwari, Halqa Gardawar, site plan prepared and submitted by the Halqa Gardawar and Commission report in support for which the defendants 1-3 have/had no right to utilize the said land. The judgment announced dated 06.05.2014 was not according to law nor the record was pursued accordingly, hence this judgment is illegal resulting of misreading and non-reading of evidences, suffers from material irregularities and non-sustainable in the eyes of law and the writer himself.

    In view of the above circumstances the writer wrote to the Chief Justice of Pakistan, Islamabad on June 8, 2014 via courier services with a request to take a suo motu action, but the Human Rights Office of the SCP, Islamabad has been very kind to inform the writer with no action and still is going on, despite of his subsequent reminders. Thereafter , the writer reached to a conclusion that there is no chance to obtain justice, hence he started to work on a concept paper for the transparent judicial system which can work much more better to quickly dispose of cases and will be monitored by the senior judges in the province and at federal level. I believe that the nation will accept and will vote to the writer for writing such a concept, which will provide better understanding to make your life easy and the rest of the Pakistan.

    KILL CRIME THROUGH TECHNOLOGY!

    Dear Public at Large:

    AOA, Below is my concept paper for the Online Judicial System in Pakistan, please print and study for its implementation and if you have any questions feel free to send an email to me and help to get this approved from any Bar Council through a resolution as you are also law abiding citizens of Pakistan and aware of the judicial process and difficulties faced by the people of Pakistan. In order to make the life easy for the entire nation it must be addressed. Since the creation of Pakistan no change or relief has been provided through the old judicial system. I hope you will help to find out the way for its implementation and make the life easy for the people of Pakistan.

    As everyone in the country is facing a great difficulty to obtain justice, hence there was no option left to put petitions online for hearing. The writer of this paper is the former employee of the judicial system and has been facing great difficulties in obtaining Justice, e.g. missing/theft of judicial record, tempering of judicial record etc. In order to avoid discrepancies every Judicial Officer must be trained with the computerized system in the Federal/Provincial Judicial Academies before he joins his office.

    Quote:

    Concept Paper: Online Judicial System
    Software be developed for the maintenance of judicial record

    Example:

    Case hearing before the Senior Civil Judge/Civil Judge:

    Each of the application/civil/criminal/miscellaneous may be filed in the court of Senior Civil Judge should be presented to the COC Clerk of Court to the Senior Civil Judge. The COC should receive the documents in the presence of the petitioner/plaintiff/defendant or through their counsels, assign the computerized numerical number/(ID card number may also be used), scan the documents and send to the Reader/Stenographer of the Senior Civil Judge and manual record of the case may also be maintained . The Ahlmad of the court civil/criminal shall produce the original record on the date of hearing when the application/civil/criminal/miscellaneous is being heard. The Senior Civil Judge is authorized to mark the case to the relevant court/judge for hearing the case and the Ahlmed shall refer the record to the concerned court. No one shall be authorized to make any amendment/access in the relevant record unless permitted by law or by authorized judge after hearing the case or with the approval of the competent authority.

    On each date of hearing the order sheet of the relevant court shall be scanned by the concerned judge of the court till the announcement of the judgment. Only the Senior Civil Judge/District & Sessions Judge may be authorized to have an access/monitor the computerized judicial record. The Senior Civil Judge/District & Sessions Judge shall pass the password to his/her predecessors on joining their offices or on transfers/replacements.

    Appeals/Revisions/Bails, hearing before District Judge/Sessions Judge

    Each of the application/civil/criminal/miscellaneous may be filed in the court of District Judge/Sessions Judge should be presented to the COC Clerk of Court to District & Sessions Judge. The COC shall receive the documents in the presence of the petitioner/plaintiff/defendant/appellant or through their counsel receive the documents endorse the number of the case according to the numerical/(ID card number may also be used), scan the documents and send to the Reader/Stenographer of the District/Sessions Judge. The case/appeal/bail may be assigned numerical number and manual record may also be maintained . The Ahlmad of the court civil/criminal shall produce the original record on the date of hearing when the application/appeal civil/criminal/miscellaneous is being heard. The District/Session Judge is authorized to mark the case to the relevant court/judge for hearing the case and the Ahlmed shall refer the record to the concerned court. No one shall be authorized to make any amendment/access in the relevant record unless permitted by law or by authorized judge after hearing the case or with the approval of the competent authority.

    On each date of hearing the order sheet of the relevant court shall be scanned by the concerned judge of the court till the announcement of the judgment. Only the Senior Civil Judge/District & Sessions Judge may be authorized to have an access/monitored the computerized judicial record. The Senior Civil Judge/District & Sessions Judge shall pass the password to their predecessors on joining their offices on transfer or replacements. (Note: Only the Senior Civil Judge and District & Sessions Judge be authorized to monitor the judicial record being In the judicial system and being the head of their system)

    All the district record be monitored by the member inspection teams of the High Courts, Senior Judges and Chief Justices of the High Courts and amendment may also be made in High Court Rules and Orders accordingly.

    Saud Ahmed Qureshi
    Author
    Email: saudahmedqureshi@gmail.com
    P.S. The author will welcome any questions/answers if any via email.

    Note: The attested copies of the said case are available with the counsel of the writer, if any one wish to examine them may contact via email.

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