Judicial Decisions: Majoritarianism Rule

JUDICIAL DECISIONS: MAJORITARIANISM RULE JUDICIAL DECISIONS: MAJORITARIANISM RULE By Mehak Zaraq Bari and Syed Akbar Hussain, Advocates, High Court Judicial function in modern democracy around the world is to uphold the Rule of Law. However, in common law and civil law jurisdictions how judges reach decisions is different. It also varies within different common law systems. In the UK, traditionally judges are seen to be interpreters of the law and not the makers of law, as they must uphold the Parliament's Supremacy and respect Separation of Powers. In the United States of America, with its written and rigid constitution, a different role is expected from the judiciary, where they have entered into the field of policy making and interpreting the constitution hence being in the political arena. Even with the vast differences in the roles of judges in different jurisdictions, one peculiar aspect remains common. Traditionally, regardless of jurisdiction, cases have been either decided by individual judges in the lower courts or a panel ofjudges in the higher appellate courts. Where there is a panel of judges, the decision is to be made unanimously or based on the majority of the judges' vote. If absolute agreement and unity is the case then it is an ideal situation, however, decision-making by majority is a more realistic outcome. The question arises as to why jurisdictions allow for majority decisions and not follow some other method of making decisions. This becomes specially important when, as it has been observed, that in the United States decisions on the legalization of gay marriage, the right to unionize, the limits of campaign finance, the extent to which firearms can be regulated, the right to abortion , and the outcome of a presidential election all have been decided by a bare 5-4 majority. Neither the Constitution of the USA nor the British Judicature Act provides for judicial decisions to be based on majority decisions. However, in contrast several laws in Pakistan reflect the position taken. The Constitution of Pakistan accounts for Judicial Majoritarianism in the context of Art. 209 (4) where the Supreme Judicial Council of Pakistan decides matters, then the opinion of the majority shall prevail, and the report of the Council to the President shall be expressed in terms of the view of the majority. Illustrating the matters of Art. 209 is the recent case of Justice Qazi Faez Isa, where a 10-member bench of the honourable Supreme Court of Pakistan passed its judgment quashing the presidential reference that sought to remove Justice Isa from his position as a judge for a failure to disclose his family property in London. The 7:3 majority judgment, was authored by Justice Umar Ata Bandial. On the other hand, three members of the honourable bench (Justice Maqbool Baqar, Justice Mansoor Ali Shah, and Justice Yahya Afridi) had dissented where Justice Afridi has authored an incredibly powerful dissent. Likewise, Justice Maqbool Baqar and Justice Mansoor Ali Shah have recorded their own reasons and views. Such open dissent against their own, has for some restored faith in the sanctity of the Constitution and the impartiality of the judiciary. However, on the other hand the debate of judicial accountability, and its interaction with executive authority has been highlighted due to this case. Under the Supreme Court Rules, 1980 the cases are fixed before a Bench consisting of not less than two judges and in some cases before a Bench of more than two judges. Difference of opinion amongst the judges comprising the Bench is not beyond comprehension therefore, the concept of "majority" and "dissent" opinions finds mention in the Rules (Order X). Citing the previous example of Justice Qazi Faez Isa although all the Honorable Judges were unanimous in accepting the petitions yet because of the majority agreeing with the opinion of the Justice Umar Ata Bandial the decision of the Court is that of the majority and the rest obiter dicta. In practice the Supreme Court, in cases when there is a difference of opinion or such a situation, it records "By majority of two to one, the petitions are dismissed" or "By majority opinion the above appeals are dismissed". Additionally, there are several other laws in Pakistan that provide for judicial majority. The Civil Procedure Code (C.P.C.) 1908 provides under Order XLVII, Rule 6(1) which states 'Where the application for a review is heard by more than one Judge and the Court is equally divided, the application shall be rejected.' And Rule 6(2) 'Where there is a majority, the decision shall be according to the opinion of the majority.' Also, Section 98 of the C.P.C. provides for decisions to be based on the majority on matters of appeals. Moreover, the Service Tribunals Act, 1973 states that if the members of a bench differ in opinion as to the decision to be given on any point, the point shall be decided according to the opinion of the majority. It separately provides for when bench is an even number. Analysing Pakistani Case-law it also seems that the Supreme Court overrules its previous set precedents even if they were made by a court of full Majority. In the Suo Motu matter, the Constitution Petition No.127 of 2012, a full bench of 5 judges overruled Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others PLD 2008 SC 522 that was a full majority decision of 3 judges. Similarly, a full majority decision of Tikka Iqbal Muhammad Khan's Case which was affirmed by a 13-Member Supreme Court bench was overruled by a full majority decision in the case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 Supreme Court 879). There is not much literature on the question of why Majority Decisions are followed by judges and why it is so widely accepted. Waldon observes that the rule of Majority Decision in courts is taken for granted and he is sure that this practice has not been made the focus of explicit justificatory argument in the history of the modern judiciary. Hannah Arendt, in On Revolution, stated that "the principle of majority is inherent in the very process of decision-making" and is "likely to be adopted almost automatically in all types of deliberative. In his article, Krishnamurthi, attempts to provide several reasons as to the possible justifications of using majority decisions, however he does it in the context of common law systems alone. One reason that is posited is because civil and common law traditions differ when it comes to how judgments are delivered. Unlike common law systems, civil law traditions do not follow binding precedents and the doctrine of stare decisis in adjudication, rather, precedents have a persuasive role. When a uniform body of case law materialises on a particular issue, civil law courts resort to treating it as a source of "soft" law, lending it a higher degree of persuasive authority, but not being bound by it. Interestingly, in most civil law jurisdictions dissenting opinions do not form a part of the judgement. When the decision of the case is drafted it does not reveal doubts that the court may have had in reaching its decision and leaves no room for dissent. Democracy One of the most commonly held justifications of the use of majority decisions is that, in a democratic state, political decisions are reached by majority vote in the legislature or through referendum as a direct form of democracy, then, in the same fashion, the decision-making by a majority of votes is also commonplace in judicial proceeding. Thus, the democratic way of reaching decisions, provides a sense of legitimacy, regardless of whether it applies to civil law or common law legal families. A further analogy can be drawn to the effect that when it comes to the dilemma between supermajority (e.g. two-thirds) and bare (e.g. simple) majority there is no difference between political and judicial procedures as both legislatures and judicial systems provide for such kinds of decision making depending on the significance of a decision to be made. However, there are great debates in the political realm as to why democratic majority voting is better; is it an appropriate decision making procedure to use because it promises to get more often to the "right answer", for example, to the election of good representatives or the making of good legislative choices or is it appropriate as it is a "fair" procedure, i.e., one that respects the principle of political equality (one person, one vote)? However, such debate and analysis are missing when it comes to scrutinising whether majority decisions is the best solution for judicial decision making. The argument for finding the "right answer" may stand in the judicial realm when, in a panel of 9, 2 judges are in dissent and 7 in majority, but this argument is significantly weakened when the margin of majority becomes smaller, such as when a case is decided on bare majority (5-4 decisions). In such situations, pertinent questions may also arise regarding certainty in law since, on the face of it, it appears as if the decision may have gone either way. Regarding the fairness argument, questions are raised as to whether all judges are actually equal; there may well be differences in seniority and expertise on any given bench. The Case for Majority Decision In his article, Krishnamurthi makes the case for Majority Decision, by essentially weighing the virtues of majority decisions against other alternatives such as Supermajority Decision on an En Banc Court (SD), One-directional Supermajority Decision on En Banc Court (OSD), and majority decision on a Panel Court (majority decisions) and assessing them each with the factors of Completeness, Epistemic worth, Stability, Efficiency, and Fair representation. The possible reasons fashioned in favour of using the Majority Decision are as follows: Completeness As the legal system, more specifically adjudication, is geared towards resolution of disputes between parties, the result of each court aims to "complete" the dispute; a timely and effective closure is sought. However, if the court employs another method of reaching a decision, such as Supermajority or One-directional Supermajority, then the chances of a dispute reaching "completion" at any stage beyond the trial stage become significantly lower rendering the process as more time consuming and expensive. Where a unanimous (Supermajority) or near unanimous (One-directional Supermajority) the dissent of a single judge may completely stop the progress of a case in its tracks and lead to massive delays and overburdening of the system as a whole. Thus, the amount of cases that is solved through the Majority Decision i.e. completed, is exponentially greater than other probabilities because it is fully complete. Due to the odd number of voters and binary choice, any distribution of an odd number of votes will result in one side receiving more votes. Epistemic Worth The legitimacy of judicial decisions is, in principle, ensured by the requirement that they are produced through an epistemically sound process. The judges should not produce arbitrary decisions but those grounded in sound and reasoned judgement backed up by law. Much like the democratic process, the concept of majority decision in the Judicial process holds some value, in that a larger number of judges reaching a similar conclusion decreases the probability that it was the "wrong" one. The greater the majority in favour of a decision, the more legitimacy and acceptability it is accorded. Another epistemic feature is the court's ability to correct decisions and reverse course i.e. for law to have a degree of flexibility to avoid injustices. When circumstances have changed for example, the courts should have the ability to correct the decision. Thus, the structure of reaching a judicial decision is important because that determines how difficult it would be to correct a decision. If unanimity were needed, reaching a unanimous decision would be difficult, and the law harder to change and this would lead to rigidity in law. Furthermore, the availability of dissenting opinions within this process allows for further refinement of the epistemic worth of decisions. It should be noted that, on a nine-member court, a decision arising from a 5-4 decision may not be seen as grounded in legal principles gathering broad acceptance. This may encourage the notion that the judgment is arbitrary, because had any one of the majority judges been replaced by another, the decision would be different. Based on the votes of the judges in any 5-4 decision, there is a 44% chance that a replacement judge would vote differently. That results in a 25% chance that a replacement judge would have changed the judgment. In contrast, when the vote difference is greater, there is a substantially less risk of arbitrari-ness. With a 6-3 vote, 66% of the court agreed with the judgment, which results in possibly strong consensus. Thus, we see that majority decisions lends itself as a cog in the larger machine of judicial epistemic process but, seen in isolation, particularly as the margin between majority and dissenting judges decreases, it is not free from the issue of arbitrariness. Stability Common law systems are based on judicial decisions that bring certainty and stability, decisions that can be replicated again and not be subject to inexplicable or unprincipled change. This assures that law is predictable so citizens can govern their lives accordingly. If judicial decision making was a random procedure for example a coin toss, then the decision for one or the other party is 50% percent. If a similar case would come before the court, there would be 50% chance of the second decision to differ from the first. This would create uncertainty, chaos, and unwelcomed, unfair results. A Majority Decision is not random, and it is not always a bare majority that makes the decisions. Most of the time only a small fraction of judges is in dissent because unlike a coin toss, or a randomised procedure, judges have to follow the constitution, legal principles, precedent, legislation and keep in mind the social policies of the society in which they function. The process of judicial law-making is not an exact science but it is one that offers stability to the legal system. However, the major argument for majority decisions leading to instability and uncertainty in the system arises from the replacement of judges after their predecessors retire. This means that courts may reverse previous decisions because incumbent judges may hold differing views about a particular case or issue. This is especially true in cases of bare majority where if a member of the majority is replaced, then there is a non-trivial chance that the same issue may be decided very differently. While the doctrine of precedent counsels against such reversals, it cannot prevent them entirely. Efficiency Judicial systems today should be efficient, to avoid a backlog of cases, to maximize the allocation of the courts' resources and time to decide the most cases. In the United Kingdom for example, judges also handle case management so there is speedy justice. Hence the judicial process for making judgements also needs to be efficient, and a system that requires more judges to resolve a case is less efficient in terms of resources. Furthermore, the method should be simple and straightforward to apply as this allows for transparency, reduces administrative and transactional costs, and makes judicial systems easy to operate. Majority Decisions are simple and require as little as one judge or three if in a panel. One example presented is as follows: that the apex court will employ supermajority voting in cases concerning property rights but will employ majority voting in all other cases. For this procedure to be applied, firstly courts would have to determine if a case involves property rights as per the constitution which would add another layer of complexity to the process of adjudication, making it less efficient and more lengthy. In contrast majority decisions is a simple rule to apply with a determinative voting procedure where deliberation runs to an end after a voting procedure in favour of a result. Representational Fairness One of the most basic requirements of courts is that they should be neutral in deciding cases. However, there are multiple dimensions of neutrality; firstly, the court must be party-neutral, in that no one party should be privileged over another. Secondly, the court structure should not privilege one set of parties over another, such as the appellants over the appellees or vice versa. For example if a decision-making process requires more votes than simple majority to overturn a lower court decision then that means that the scale is stepped in favour of the lower court decision and thus the appellant is at a disadvantage. Another aspect of neutrality is between judges themselves; that no one sitting judge should have power over another sitting judge of the same court. Their votes should be counted equally; this is called collegial neutrality. Waldon criticizes this virtue, questioning whether it judges should be treated equally given that there is usually a relative difference as to seniority or expertise and thus, in a majority decision, not every vote is truly equal. Krishnamurthi argues that the only way to give individual judges respect is to treat them as equals. He concurs that taking into account two judges seniority and expertise may result in better or "correct" decisions but he also questions whether a inequality among judges based on mere seniority or expertise might not lead to benches that are resistant to alternate approaches to solving problems. Furthermore, the court system includes different types of judges from different socio-economic walks of life and different perspectives and areas of expertise. It is this diversity which allows the court to be dynamic in its approach to problems and adds legitimacy to its decisions. Evaluations of expertise and seniority do not account for diversity, which begs the question as to how the vote of an individual judge must truly be weighed. Moreover, giving increased or decreased weightage to judges on the same bench might be unnecessarily complicated, even more so in court systems such as the US where Supreme Court judges play a very political role. Management of Judicial Authority The way in which the concept of Majority Decision manages judicial authority empowers individual judges and favours the power of the judiciary as an institution. In the US Supreme Court every judge hears and votes on every case. This gives each individual judge substantial authority. Furthermore, due to the principle of collegial neutrality, each judge is given as much power as possible within the decision-making process, majority decisions does not require a particular size of the court; the smaller the court, the more authority each individual judge will have. majority decisions in comparison to the alternatives is justifiable on the basis that it is desirable to empower the institutional court and the individual judges to the greatest extent feasible. Conclusion Majority Decision in the study findings fared better than other alternatives as it is fully "complete"; as an epistemic matter, it is fairly flexible; in terms of representational fairness, it is party neutral and collegially neutral; and in terms of efficiency, it is simple to implement. Through these factors' majority decisions is either superior to or equal to the alternatives. Majority decisions possible shortfalls arise in characteristics of its epistemic worth, stability, efficiency, and representational fairness. On the other hand, Super Majority Decision (SD) offers some benefits over majority decisions in terms of correctness, by reaching the correct result more often when it reaches a result, and non-arbitrariness, as decisions that reach a result will obtain a larger consensus than majority decisions potential decisions. However, it suffers in party neutrality (if the SD rule defaults to the lower court's decision) or simplicity and resource efficiency (by complicating the decision procedure and by calling for future adjudications for the same fact pattern). Additionally, SD also lacks the flexibility of majority decisions. In Pakistan, the Rule of Majoritarianism is fairly and firmly settled. The Constitution of Pakistan like other jurisdictions recognizes the democratic principle of majoritarianism when it comes to the political arena. Thus, in an election whosoever gets majority of votes is elected. The same principle is applicable to the elections of various offices and functionaries like the President and the Prime Minister. Through similar logic, in the judicial domain the same principle is invoked. The laws of the country reflect as such for example, Art. 203 J(2)(d) states that the decision of the Court (Federal Shariat Court) shall be expressed "in terms of the opinion of the majority of its members". Another example is found in Art. 209(4) relating to Supreme Judicial Council that in case of difference of opinion amongst its members "the opinion of the majority shall prevail". Judicial majoritarianism seems to best balance the various qualities of adjudicative systems to best further the institutional goals. However, with limited literature on the matter, and less focus on jurisdictions wanting to amend the majority decisions, greater focus globally is on other issues pertaining to judiciary such as the politicization of American judges, or the lack of diversity of British judges or lack of training, or lack of modernisation in court systems in developing countries to name a few. The issue of majority decisions does not question the legitimacy of judicial decision making nor questions the rule of law. Issues of arbitrariness arise due to bare majority decisions of political importance, but even then, judgements reflect judicial reasoning, stare decisis, and principles of law that give legitimacy to the decisions.