Do The Judges Make Law?

DO THE JUDGES MAKE LAW DO THE JUDGES MAKE LAW? By Muhammad Usman Ramzan, Advocate High Court, Lahore There is no denying the fact in the veracity of the statement that "judges play a significant role in development of law". Although, the power "to make law", "to amend the law" and "to repeal the law" are purely legislative in nature, yet the courts make law through the interpretation of law and also amend and repeal law by judicially reviewing the legislative actions. The Articles 189,201 and 203GG of the Constitution of Islamic Republic of Pakistan 1973, recognize the existing reality of life namely "judges make and change the law". According to Article 189,"Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan". Similarly, according to Article 201 of the Constitution, Subject to Article 189, any decision of a High Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all courts subordinate to it. And by Article 203-GG, subject to Articles 203-D and 203-F , any decision of the Federal Shariat Court in the exercise of its jurisdiction under Chapter 3A of Part 7 shall be binding upon a High Court and on all courts subordinate to a High Court. Apart from the aforesaid provisions of the Constitution, the constitutionality of any law can also be challenged in Supreme Court under Article 184, in High Court under Article 199 and in Federal Shariat Court under Article 203-D of the constitution and these courts have the constitutional power of judicial review of legislative actions. On one hand, the Supreme Court and High Court can declare a law null and void on the ground of inconsistency with the provisions of Constitution, on the other hand Federal Shariat Court can, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Quran' and the Sunnah of the Holy Prophet, (PBUH), hereinafter referred to as the Injunctions of Islam. So the judges are making and amending the law in a different manner, now-a-days. Owing to this, the doctrine of judicial legislation is frequently used in different legal systems of the world. Historically speaking, the declaratory theory of judicial decisions is to be found in a statement by Sir Mathew Hale over three hundred years ago viz. that the decisions of the courts do not constitute the law properly so called, but are evidence of the law and such "have a great weight and authority in expounding, declaring and publishing what the law of the kingdom is". Blackstone stated the rule that the duty of the court was not to "pronounce a new law, but to maintain and expound the old one". Thus the theoretical position has been that judges do not make or change law; they discover and declare a law which is throughout the same. According to this theory, when an earlier decision is over-ruled the law is not changed; its true nature is disclosed, having existed in that form all along. As Lord Reid said, a "fairy tale" which no one any longer believes. In truth, judges make and change law. 1Benjamin N Cardozo, later a judge of US Supreme Court said, "I take judge - make law as one of the existing realities of life". The prevailing view, thus, is that in deciding question of law, the judges do make and change law. Lord Denning said, "In theory, the judges do not make law. But as no one knows what the law is until the judges expound it, it follows that they make it". This is now a settled view both in America and England that has been constitutionally adopted in Pakistan. Thus in Province of East Pakistan v. Siraj ul Haq Patwari case, Chief Justice Cornelius said that decisions of the Supreme Court and High Courts are the source of law.2 It is however important to bear in mind that while judges do make and change law, they do not legislate and phrases such as "judicial legislation" are better avoided. The primary function of judges, as the judicial arm of the state, is adjudication and the doctrine of precedent is a by-product of litigious process; it is in the performance of the function, principally through the interpretative, as distinguished from legislative process, that they make and change the law. Suppose that a statute makes it an offence to drive a vehicle while intoxicated and defines vehicle as not including a bicycle. But suppose that the statute does not define the word vehicle and a person is caught pedaling a bicycle while intoxicated. The court trying him holds that a bicycle is not a vehicle and this view is upheld by the Supreme Court. This interpretation of the expression vehicle by the court has the same effect as if the statute itself had said that a bicycle was not a vehicle. This is the simplest case of law-making by judicial decisions. Cases from American jurisdiction provide instances out of number, particularly in constitutional matters, illustrating the point. For example, the US Supreme Court found that the right to privacy, though never mentioned in the constitution, is a fundamental constitutional right and that this right embraced the right of a woman to choose an abortion.3 Robert Luce throws some more light upon the importance of precedents by terming the judges as legislators while disapproving the dictum laid down by Justice Thompson i.e. "To declare what the law is, or has been, is a judicial power; to declare what the law shall be, is legislative." 4Robert Luce dilated upon the aforesaid dictum and has commented that in theory Justice Thompson's precise assignment of power may be accurate; in practice it does not hold. He said: "Things would be simpler if that were true but it is not. Today both judges and legislatures decide what the law is, or has been, and what it shall be."5 While discussing the compelling circumstances, wherein, a judge needs to act as legislator Robert Luce, has quoted an address of Chief Justice M.P. Knowlton, of Supreme Court of Massachusetts, at the Yale Law School, June 24, 1901 and has thereby well set forth the problem. In his Lordship's words: "A large and important part of judicial decisions under our system is in the interpretation of statutes. Question often arise in the application of statutory law to unforeseen circumstances, and a meaning must be given to language by construction, when the words as originally used meant something less in the minds of those who used them, because the new conditions were not then contemplated. Another class of question arises under carelessly drawn statutes where obscure or inconsistent provisions leave the meaning doubtful. It is obvious that in molding new and imperfect and hastily drawn statutes into a system, the revisory work of the courts is hardly less important than the original constructive work of the legislatures. It is also manifest that in the construction of statutes, question of great delicacy arises which involve the relations of the judicial and legislative departments to each other. Even in mere interpretation, when no constitutional question is involved, the court must determine whether one purpose or another purpose should be imputed to the legislature, must try to ascertain the meaning of the language in reference to the conditions which were not thought of, must give weight to important principles that are a part of the very tissue of the State, and must reach a result, even when best result possible will be of necessity unsatisfactory. Is it strange that there are decisions which are sometimes called judicial legislation?" 6But The Courts adjudicate and the legislatures anticipate. The court applies a specific rule to a concrete case; the legislative body, in enacting general laws, creates an abstract rule for cases yet to come. Few things are harder than to anticipate wisely or completely. Could all the possible applications of any general rule of law be foreseen, courts and judges would have little to do."7 In Pakistan, the provisions of a statute and even the whole statute can be declared null and void on the ground of unconstitutionality by the courts while exercising the power of "judicial review of legislative actions". In such cases, the legislature has to alter the statute to render the same workable in accordance with law. The Supreme Court, High Court and the Federal Shariat Court have extra ordinary powers to repeal a statute as having been against the constitution and the injunctions of Islam as laid down in the Holy Quran and the Sunnah, respectively. Article 203-D of the constitution is related to the Powers, Jurisdiction and Function of the Court (Federal Shariat Court) and the court has declared several laws against injunctions of the Quran and Sunnah while exercising power under this Article. Then, those judgments of Federal Shariat Court Necessitated amendment in law. e.g. it was held; "No law repugnant to injunctions of Holy Quran and Sunnah can be enacted and all existing laws are to be brought in conformity with the same".8 S.3 of Corporation Employees (Special Powers) Ordinance was declared to be against injunctions of Holy Quran and Sunnah.9 Para 24 (M.L.R.115)-Land Reforms Regulation, 1972 which put clog upon right to sell in certain situations was held to be against injunction of Holy Quran and Sunnah.10 Ss. 4 & 13 Sindh Rented Premises Ordinance, 1979 and Ss. 4 & 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 were declared to be against injunctions of Islam as laid down in Holy Quran and Sunnah.11 S.295-C, P.P.C. to extent of providing alternate, life imprisonment for use of derogatory remarks against Holy Prophet (P.B.U.H.) was declared to against injunctions of Islam.12 "the President cannot grant pardon in cases where the accused is convicted under Qisas or hadood laws. It was held to be right of heirs of deceased or victim in case of injury. 13Any amount, big or small, over the principal, in a contract of loan or debt is Riba prohibited by Holy Quran and Sunnah regardless of whether the loan is taken for the purpose of consumption or for some production activity. "Undefined, naked and generalized power to allow interest on debt as provided in Interest Act, 1839 being repugnant to injunctions of Islam. Shariat Appellate Bench of Supreme Court directed its repeal and declared that Act shall cease to have effect from 31-3-2000. 14Premature compulsory retirement without notice by way of summary procedure is against injunctions of Holy Quran and Sunnah. 15Termination of regular employees of PIA without giving show cause notice/ termination without availing the right of hearing was held to be against injunctions of the Holy Quran and Sunnah.16 Denial of citizenship to foreign husband of Pakistani woman on the ground that under Section 10 of Pakistan Citizenship Act, 1951 such right is available only to Pakistani Husband for his foreign wife-held the denial is discriminatory against injunctions of the Holy Quran and Sunnah.17 Principle of "caveat emptor" was not approved by Injunctions of Islam as a vendor was required to disclose defects in sale commodities to the-vendee. 18Provisions of then Pre-emption Act were declared to be against the injunction of Islam as laid down in Holy Quran and Sunnah, where after the law relating to pre-emption was re-enacted to bring the same in accordance with the judgment of the Court.19 If an amendment can be introduced in a statute on the instance of the judgment of the court, then, definitely the precedents have implications on the legislative drafting process. A good draftsman always keeps himself abreast of all the relevant precedents touching the cannons of interpretation. As quoted by George Costello, Legislative Attorney, American Law Division: "Supreme Court has expressed an interest that congress be able to legislate against back ground of clear interpretive rules, so that it may know the effect of language it adopts." 20Before using a precedent it is advisable to carry put two simple checks/tests: Whether the precedent has been amended since enactment; whether there is any case law relevant to it. 21Careless borrowing may produce a law comparable in shape and efficiency to a motor vehicle running on wheels borrowed on each from the first four motorists to pass by. Careless use of precedents produces inconsistencies of language and style. The precedent must be adapted to fit the pattern and language of the draft to which it is introduced.22 Advantages of use of precedents in legislative drafting are; the judicious use of precedent can always save a lot of time; a precedent may constitute a source of idea, in addition to constituting a help in the actual drafting; the use of precedent from same jurisdiction may contribute a small way to consistency of approach which in turn will contribute to statute law becoming coherent body rather than a patch work. 23 It is clear now like a mid-day sun that the judges make and amend law, but in a different manner. It does not mean that they transgress their constitutional limits or violate the theory of separation of power; indeed they perform such function with concurrence of the constitution. The judicial legislation is a misnomer that is to be better avoided as the judges cannot intrude into the domain of the legislature, what they can do, is to examine the constitutionality of a law and can expound the intention of the legislature through interpretation. Moreover, the draftsman can seek guidance from the precedents and a precedent can become the basis of the forthcoming law. Book Review: Justice (Retd.) S.A. Rabbani's autobiography, published by Fazlee Book Super Market, Urdu Bazar Karachi, is a rare insight into the life and thoughts of an accomplished, and widely respected individual. Justice (Retd.) S. A. Rabbani's long and illustrious career in positions of responsibility in the judiciary, executive and the Legislature makes this biography an essential reading for anyone who wishes to probe into the story of a life lived for accomplishment. This book is an amalgamation of the thoughts and ideas of a remarkable individual who truly distinguished himself in all spheres of public life. The main premise of the book, that "nothing is yours in this world except time"; is very appropriately encapsulated in the title, " ". Justice (Retd.) S.A. Rabbani persuasively observes that an individual's personality and the life such a person leads, is dependent upon on the settings in which an individual is born and poignantly recounts the circumstances of his own birth in a Muslim family at Rorkee, British India, in the year 1939. In his memoirs, recollections from his own life and vast experience of public service are expertly entwined with thoughts and observations on the post-independence evolution of the socio-economical condition of Pakistan. He delves upon shortcomings of the legal system, which in his belief is useless without the same being capable of being enforced properly. In this book, he observes that while judicial pronouncements may at times be illegal; but it was imperative they should never be illogical. He adopts the reasoning that as a logical defect can be understood even by a layman; and therefore an illogical decision taints the name and reputation of the entire Judiciary. The author has had the distinction of being associated with the Legislative functions of the Parliament and painfully notes that there is an absence of a coherent system of teaching drafting of laws. He also recounts in detail, his vast experience of being associated with the Judiciary, Legislature and departments of the Executive and notes that a reluctance to change for the better is pervasive everywhere and that this very attitude of the status quo has been the real snag to progression. Justice (Retd.) S.A. Rabbani also comments on the lack of initiative, imagination and foresightedness in Muslims, and observes that it is very unfortunate that the application of a thoughtful mind and imagination is considered an unnecessary exercise in the contemporary Muslim culture and a dependency on past precedents had led to an unhealthy complacency, which has thwarted progress. He makes the case that invention and discovery are the basis of progress, which can be achieved only through imagination. The book, authored in Urdu, has the qualities of readability and brevity.