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Editorial
Court
of law or court of justice context Questions of institutional
morality
We at TNS have dealt with
the judiciary’s role in recent years case by case. So have others in the
media, print and electronic. Those who comment on various decisions of the
superior courts have a vested interest — political, moral, whatever. Some from within the legal
profession have a legitimate professional security interest. But comment
they must all. On one level, there could
be a broad and crude classification of these commentators on the new
judiciary that has emerged after the Lawyers’ Movement. There are those
who think that whatever this judiciary does is perfectly valid and must be
appreciated at all costs. The other set of commentators takes a political
view of its performance; some of them claim this is the same old
pro-establishment judiciary, which is now arbitrary in its function and is
only adding to the body of weak jurisprudence. A third set of commentators
go case by case. Sometimes they are pleased by one decision of the court; at
other times they are not too happy and make it known through their writings.
The only problem with this line of analysis is that the overall signal they
end up sending is that since there is so much good work being done, the
small errors being committed could be ignored. What has not been
seriously attempted is a view of the institutional role of judiciary. We
acknowledge that there is no objective or non-partisan view possible —
those who argue in favour of “the sanctity of judicial function”
principle also take a moral view. Beyond these commentators
sitting outside the fence, there is an introspective view — of how the
judiciary has come to define itself. The manifesto, if it may be so called,
that the judiciary has carved for itself revolves round the principle of
“independence”. But then it will be relevant to ask: what is it that
this judiciary wants to be independent of and, logically, what was it that
it was hitherto dependent on? Clearly, it has decided to insulate itself
from other ‘corrupting’ institutions, starting from the appointment
mechanism. This prerogative of the executive has been snatched — beginning
with the Al-Jihad Trust case — and confined in the judicial domain. The next step was, of
course, judicial activism and one that sold like hot cakes because there was
a media ready to paint it as the saviour institution in an environment of
institutional decay. This function of judicial activism has been a
contentious subject (as it is elsewhere in the world) among the commentators
here but they have dealt with it case by case. In our Special Report this
week, we have picked a list of illustrious commentators to tell our readers
how they view the judiciary at this point in time. This is a more generic
view of the institution in an attempt to understand and critique its work.
Our purpose, as of all journalism, is to seek a better society than this.
domain After close to three years of judicial activism, advocates of division of power in a democratic set-up and independence of the judiciary have good reason to start discussing the impact of the current trend on the system of justice in particular and on democratic governance in general. Since the restoration of
the judges who had been unjustly sidelined by General Musharraf, the Supreme
Court has taken suo motu notice of a large number of irregular actions and
practices of the administration. This has encouraged many private parties
also to bring their grievances directly to the apex court. Taken together,
these cases have revealed an almost total collapse of the administrative
machinery, a huge loss of economic resources through inefficiency and
corruption, including blatant violation of rules and regulations and the
elementary principles of administrative and financial propriety. All this
has raised quite a few serious questions. First, how long and to what extent can the superior judiciary assume the role of an overseer of the executive’s routine functions because this cannot but affect its normal duties as dispenser of justice? Second, is judicial intervention in administrative matters enabling the executive to reform itself on a permanent basis and will actions on case to case basis add up to a new and self-regulatory administrative system? If an answer in the affirmative is not possible, the country faces the danger that the judiciary may be bogged down in house cleaning jobs that lie in the executive’s domain. An acknowledgement of this dilemma can be seen in a recent observation of the honourable Chief Justice of Pakistan that the judiciary would not have intervened in administrative matters if parliament had fulfilled its responsibilities. It is true that the Supreme Court did give the parliament due notice and time to undo some wrongs but there have been many exceptions to this rule and that throws up a basic question: Is it appropriate for the judiciary to go on working as the final accountability branch of the executive and also assume some functions of the parliament or whether it would be better to help and guide the parliament to institute adequate accountability mechanisms and thus relieve the judiciary of the extra burden it has assumed in public interest? The problem in trying to cure the administration of its chronic afflictions through judicial activism is that instead of limiting their intervention to a demand for the removal of an incompetent/ corrupt functionary the courts may start designating his successor, too. The judiciary’s unhappiness with the parliament is not difficult to understand but it is perhaps necessary to appreciate the fact that the parliamentarians, and all politicians in general, are recovering from the grievous injuries caused to them by successive military dictators. The latter destroyed all institutions of representative and responsible governance including the parliament and the judiciary. What was done to the judiciary in 2007 was not the only assault on its independence by the country’s authoritarian satraps. How long did it take the judiciary to take a concerted stand against the PCO? At least three decades. The politicians may claim half of that period to become fully aware of their democratic responsibilities and develop the requisite skills. The judiciary will not be fair to the democratic system if it joined an uninformed public in expecting an imperfect democracy to function as a network of ideal institutions. Besides, it may be necessary to ponder whether by increasing the pressure on parliament/politicians the judiciary could be hampering the process of their development into fully responsible entities. The country’s democratic institutions never had the opportunity to win the common citizens’ loyalty and many of them are ignorant of the evils of despotic rule, even of colonial exploitation. Hostility to politicians, thanks considerably to their own follies and excesses, has become a prominent part of the Pakistani mindset. That inhibits the people’s constructive interaction with political parties, without which democracy cannot be consolidated. In this situation a barrage of judicial strictures on parliament/politicians could do more harm than good. In the debate on judicial activism that has taken place in many countries, especially in India, references have often been made to the dangers inherent in judicial populism and what is described as ‘excessivism’. In a country like Pakistan where the people have a tradition of making extra-legal demands on the judiciary, like calls for execution of criminals without trial or pleas against trial of murderers of blasphemy suspects, these dangers need extraordinary attention. Any extended resort to judicial activism is bound to raise questions about the criteria employed while taking up notice of some incidents and ignoring others. The judiciary cannot possibly take up all deviations from law and due process. If one rape case is taken notice of and some other similar cases ignored or if one provincial government is censured and another appears to be exempted, the image of the judiciary could unnecessarily, and unjustifiably, be impaired. Besides, judicial activism is like heady wine. Even the most independent minds can get addicted to it and forget the limits to self—righteousness that prudence prescribes. The judicial authorities can get convinced that if they have the powers of judicial review these must be exercised in each and every case that comes to their notice. This can be especially disastrous if a state has ideological pretensions. For instance, Pakistan is obsessed with the notion that all concepts of justice and democracy can be sacrificed for the sake of national security and the state’s Islamic status. The judiciary has to be on its guard when confronted with demands made in the name of national security or in the name of belief. National security is always a tricky affair. Usually the concept is invoked by irresponsible executive authorities to restrict citizens’ rights and freedoms. The judiciary is then required to protect anyone who is put to hardship under cover of security needs. Nothing can be more dangerous to people’s rights than the judiciary’s assumption of the prosecutor’s role ostensibly to protect national security. An unwelcome result can be the grant of concession to the views of the security agencies at the cost of other institutions. The claims made on the judiciary on the grounds of belief pose extremely serious problems. All judicial authorities are bound by their oath to act strictly in accordance with the constitution and the law and they are not required to judge matters in the light of their belief. The application of religious arguments in legal matters and references to ‘precedents’ from the early days of Islam, often inappropriate and inapplicable, can cause great damage to the cause of justice. In the short run this can lead to decisions being based less on law and more on subjective interpretation of belief that lacks the binding force of law. And in the long run this will reinforce biases against all those sections of society whose rights the orthodoxy has always denied. Particularly questionable is the indulgence of superior courts’ judges in religious rhetoric during off-the-bench encounters. There is much to be said for an end to the regime of judges’ isolation from society that was in place till a few decades ago, and for their participation in debates on people’s intellectual and social uplift. But religious discourse will push the judges into controversies and they could begin to be challenged in an area where contempt laws do not apply. That judicial restraint can sometimes produce as positive results as would follow judicial activism is known. A recent example from India is the way the Supreme Court disposed of the army chief’s petition for correction in his date of birth. Instead of holding an inquiry into the time and circumstances of the general’s birth, ascertaining how two dates of his birth came on the record, and scrutinising the defence ministry’s powers and procedure the Supreme Court paid some compliments to the general and referred to the authority of the government and helped both parties go home in a happy frame of mind without any decision in either side’s favour. Similar instances can be found in Pakistan. Last year, a petition in the Supreme Court challenged the favour granted to a former chief justice and some other persons in the allotment of plots in a housing colony. The court wisely declined to intervene and said the matter could be raised at some other forum. However, the court’s choice of matters in which it declines to intervene too reveals its preferences. Working people, minority communities and victims of religious militants might feel excluded from the judiciary’s benevolence. The case for some introspection by Pakistani’s judiciary is quite strong. The honourable judges are best qualified to ascertain whether activism of a particular brand is increasing the people’s confidence in the system of justice or otherwise. The dictum that absolute power corrupts absolutely is not valid for politician alone. The people still believe they were right in supporting the lawyers’ agitation for the restoration of the judges. One shudders to imagine the consequences if they begin to doubt that decision.
Court
of law or court of justice Is the Supreme Court of Pakistan — at this point in time — a court of law or a court of justice? This may seem an unfair question but an integral part of sitting in judgment over persons and institutions that represent millions, is not just being impartial and accountable yourself but also seen to be doing justice. Passions aside, the bagful of cases that the SC has been championing over the past two years as manifestation of a thinly-veiled judicial activism begs for context, particularly when seen in a perspective of the intended parties that need to be ‘brought to justice’: the president and the prime minister and the very service of parliament that their offices represent carrying legitimate mandates. The assertion of independence by the superior judiciary, realised through an astonishing battle in public view in 2007 with an overbearing military led by General Musharraf, makes sense in that it transformed both its public image and its own consciousness as the guardian of law and protector of rights guaranteed in the constitution, after being comfortable partners with the very same military for eight years and then fighting back only when jobs of judges were on line. Activism by a
‘newborn’ judiciary ostensibly sobered and distanced from the stain of
validating the 1999 military coup also makes sense. Also understandable is
that this independence espoused by the apex court was always going to rub
with Pakistan’s transition from military rule to democracy as it went
beyond just holding elections and started addressing flaws of the state and
its systems that allow military adventurisms on the very people it is
supposed to protect. What is not understandable is how the new independent judiciary of post-2007 goes about choosing its flagship cases to champion as an aggressive defender of supremacy of law. Take NRO. That tainted political deal between PPP and the army that expanded the playing field for political players (including Nawaz Sharif who conveniently forgets) to corner the military into allowing what was a right not a privilege in the first place. Did the judiciary step in when the ordinance was announced in 2007 to cancel it? Or, even three years after it was enforced? Why only when the military decided it didn’t like Zardari? The PPP, in office with legal mandate and constitutional protections, has been targeted as the sole party to be punished. Were notices issued to General Musharraf who was the other signatory party with Benazir Bhutto on NRO? Was General Kayani, who actually brokered the deal between Musharraf and Bhutto, made party to the case and petitioned? A brazen visual difference between the two parties to the NRO deal is that one are uniformed ones and the other civilians. The other distinction is that the uniformed ones are state servants and supposed to answer to the government. The political parties are answerable to the people and yet they are being made answerable to judges while the generals answer to no one! If the post-independence judiciary can dig up a case that precedes their newfound professionalism and missionary zeal for justice, then how come another “NRO” from the same period — the amnesty deal for Nawaz Sharif (pardon for ‘hijacking’ an army chief’s convoluted views of national service and exile in exchange for becoming politically inactive) — is not a case fit for justice? Just to be clear, it is not being implied here that Sharif was guilty (although the judiciary found him thus!) but that Musharraf was. Instead Musharraf, whose second coup this very court defied and declared unconstitutional, roams free while Sharif and the elected political leadership with the people’s mandate that he represented, remains without justice, as do the people of Pakistan who suffered military rule. Is this case not taken up ‘merely’ because it is water under the bridge, or is it that because some of the very judges who are free now legitimised the deal (by validating Musharraf’s martial law) and by holding Musharraf guilty they will be indicting themselves also? Take contempt of court. Elected prime ministers may well be guilty of contempt of court and may well deserve to be punished and out of office but can this be done extraneous of context? If this comes as the price of weakening the political system that promises people’s sovereignty, is justice being served or merely the law being upheld? Was it not the ultimate contempt of court when first the chief justice and then the entire bench — as also dozens of judges in high courts — were sacked and interred along with their families? Who was thrown out of office for this? Musharraf continued in office for several months after this. He never even received a contempt of court notice. The current army chief, who was part of the pack of five generals forcing the chief justice to resign in 2007, never received a contempt of court either. But clearly in judicial view heavens will fall if an elected prime minister is not charged with contempt. It is merely selective application of the principle of rule of law that politicians can be petitioned at sweet judicial will while generals, whether in uniform or without, don’t even get a contempt notice despite the bitterness of the judges, leave alone thrown out of office, into jail and punished, as the law demands. Is it justice that politicians first serve long jail terms (Zardari 11 years, Gilani 5 years, Hashmi 3 years), while trials never conclude or were discernibly miscarriages of justice? Is it justice that courts validate the assault on people’s mandate by state servants in uniform while elected leaders are hanged under orders by judges, their illegal ousters validated, their forced, unlawful exiles supported by legal default while no one gets punished when former prime ministers (Benazir Bhutto and Liaquat Ali Khan) die on the roads in garrison cities. A suo moto, or a contempt notice, anyone? Because there is no judicial justice, the people seek vengeance by voting for democracy, which is continuously sabotaged by unelected forces. More injustice follows. Yes, the judiciary wants to uphold the rule of law, as also to bring the at-times decidedly unbridled, uncaring state to account. Yes, the apex court has agreed to take a new look at the open-and-shut case of army and the ISI sabotaging people’s mandate and the electoral process by dividing up and bribing some politicians. And yes, ISI and MI are being softly called to account on the unacceptable Balochistan killings and disappearances. But the disproportion between the ‘easy pickings’ that the emaciated (in big part due injustice by the judiciary) elected forces are and the decidedly ‘hard target’ that the powerful establishment is, in terms of how the superior judiciary deals with justice means it is still very much a court of law, not court of justice. Because this is selective rule of law, not complete justice. A strong, impartial, fair and independent judiciary would be a cornerstone of a progressive democratic polity in Pakistan. For this to happen, the superior judiciary needs to stop being impulsive, selective and obsessive about specifics sans context. It has to do more to articulate its distance from its poor performance as defender of the constitution, its as-yet inability to call into account forces other than politicians who are held accountable by the people anyways (without the need to be judged for intent by the courts) and further demarcation of the line between elected governments and the military. Without actively helping the political forces address the debilitating civil-military imbalance, the superior judiciary cannot be part of the solution for Pakistan or be the claimant to providing proper justice to the owners of the constitution: the people. The people, who want judicial protection for the political forces they support to realise their collective dreams, not shields for men in uniform who don’t even need to formally take over to control Pakistan and steal the people’s dreams.
context Revolutions at
times devour their own children. In our case it seems to be a movement. And
despite all that the resident cynics, naysayers and chattering classes may
say about the eventual restoration of judges being attributable to
mysterious behind-the-scene forces, what we witnessed some years ago was
indeed a genuine movement. It brought something out of a jaded society that
was commendable and inspiring. Those were sunny days illuminated by a
genuine spirit shared by many. Unfortunately, what one witnesses now are
mere fragments of that elevating memory. Take the lawyers, for instance. Aitzaz Ahsan, the Movement’s face, its master planner, its driving spirit, was shamefully jeered recently outside the Supreme Court by a black-coated mob. Ali Ahmad Kurd, the Movement’s street organiser extraordinaire, has been long bemoaning the Movement and the Court’s betrayal of ordinary litigants. Muneer A. Malik, the Movement’s poetic muse, has descended into silence. Justice (Retd) Tariq Mahmood, the Movement’s soft-spoken TV face, has lost the conviction in his voice. The current and past presidents of the Supreme Court Bar Association have both defeated opponents widely believed to enjoy tacit approval of the bench and explicit approval of some recently retired judges. They in turn — Asma Jahangir in particular — have at times openly taken issue on matters political disguised as legal. There are yet other leaders, of lesser visibility on television, who are similarly critical or disillusioned. There are also those, of course, who echo every judicial utterance like a sacred text and extol it like a political manifesto. At the level of the rank and file, unity has given way to an implosion. Citizens who showered petals on the marching lawyers are regularly confronted by new shockers. Appalled, they look on at factions of lawyers harassing district court judges, beating up journalists, fighting pitched road battles with the police if an unfavourite judge is not transferred on their whim, garlanding the murderer of a governor and demanding his immediate release, gawking at a female dancer at a bar function and banning a mango beverage — which was still Islamic in the Movement days. When they don’t have their way, their first casualties are law, order and common decency. Some onlookers wonder whether the commonality of the colour of their garb and the uniform of the infamous Italian paramilitary group called the Blackshirts is a coincidence. Or, does fascism like wearing black? The Movement’s other
offspring was the rejuvenated electronic media. Real-time coverage of
protest marches ushered in a vibrant new era of political protest. The utter
lack of objectivity and rigour and a penchant for sensationalism has since
reduced it to a caricature of what it could have evolved into. Especially so
in comparison to the fast maturing social media that now provides a vital
counter-voice to a brand of TV that passes off opinion and prejudice as
facts and argument. The result is confusion and irritation as opposed to
information and education. And, finally the judiciary! Riding a genuine wave of wide support, it faltered in making the important distinction between popularity sustained through meaningful performance and the pursuit of popularity beneath the veneer of populism. It also underestimated the burden of popular expectations. The sight of showering petals and the sound of supportive slogans are a heady mix. But when you promise them the moon and the stars, people ask questions. They expect promises made in the heat of battle to be kept. Also, they can’t be scared away by the stick of possible ‘contempt of court’ as populism pulls down the walls of respectful restraint. The electronic media has majorly contributed towards transforming the staid phenomenon of court proceedings into a spectacle. Reporters pounce on real or hidden nuances of an obiter judicial utterance or a casual gesture with the same gleeful idiocy that characterises their scavenging in arenas far more frivolous. As a result, there is a conflation of the serious and the mundane. Unfortunately, our lordships seem not to object. The apex court is routinely thronged by these characters and their antics are overlooked. Back in the studios, this mostly patchy reporting is swallowed up by voracious anchors. Another alchemy initiates. Then come forth specimens of glittering nonsense, tales of impending doom and vignettes of legal fantasy. Everyone and their maternal aunt are passed off as constitutional experts. The ultimate insult to our collective intelligence arrives at 9 O’ clock (and, on the hour, every hour) when drum rolls, trumpets and strange popping sounds accompany the narration of pop jurisprudence. For the ordinary citizens, this high politico-constitutional drama lost its flavour soon after the restoration of our lordships. They awaited some positive change. And yet the grand jurisprudential potpourri of the ensuing period is overwhelmed by ingredients such as PCO, NRO, Memo, Eighteenth Amendment review and the like. Regardless of their intrinsic legal worth, these matters extraordinaire have overtaken our waking life. Meanwhile, two very
important imperatives remain overlooked. The first is the state of the
country’s subordinate courts where ordinary folks stand transfixed and
muted by the slow, expensive and cumbersome hum of everyday law. Despite
explicit promises in the National Judicial Policy 2009 about upgrading the
quality of justice delivery in these courts, very little has changed except
for the mood of long-suffering litigants that is bleaker. The second is the very phenomenon that earned this Court and its Chief Justice wide respect. It was their humanity and, therefore, their welcome broadening of Article 184 (3)’s ambit as well as the employment of suo moto powers for protecting the most vulnerable and the worst exploited. The modern state is by far the most egregious transgressor on these counts. In our homeland, torture and extra-judicial killings by state agencies escalate. Journalists are slaughtered but remain legally unavenged. Vast areas are descending into a whirlpool of mayhem and violence. However, it is telling that these special powers have most recently been employed to admit a petition that expresses speculative fears about the theoretical future firing of the country’s top general. The procedure meant for the very vulnerable now seems to be for the benefit of the most powerful. A constitutional provision justified purely due to its potential for rescuing those whom all have forgotten is routinely used to intrude into political or policy contestations. This was the apprehension that caused the Indian judges to pause, reflect and roll back the use of such judicial powers. There are, of course, notable exceptions where the Court has shifted its gaze to the disempowered and pushed back against the powerful. But, increasingly, the gaze lies elsewhere or is obstructed by camera flashes. It is painfully evident that such frequent use of a pro-weak law for uses it was rarely meant to be put to will be the norm that this period will be most remembered for. Osama Siddique is an Associate Professor of Law & Policy at LUMS. He holds a doctorate in law from Harvard Law School and was a Rhodes Scholar at Oxford. He can be reached at dr.osamasiddique@gmail.com
Questions of institutional
morality The Lawyers’ Movement was a time of heady romance — when all was possible and dreams were within reach. Even the most cynical among us felt the excitement that accompanies uncertainty pregnant with promise of better times. And in ways that we may not have realised then, hopes were born. The Lawyers’ Movement
was not an end in itself — it was never meant to be. Uncomfortable
questions of institutional morality were bound to arise — and they are
here. Institutions do not operate in a vacuum. Our senior judiciary is
situated within a socio-political and historical context that demands tough
answers from it; answers that the judiciary has seldom provided. Burdens
abound. It is perhaps the only arm of the state of Pakistan that has never
had to pay the price for supporting dictators, except when its own members
held them accountable and even those events merit a debate that is largely
absent. That represents part of the problem with judicial activism. Judges
throughout our history have only been accountable to themselves.
Parliament’s legitimate attempts to reform the judicial appointments
process met with stiff resistance by the apex court; we were on the
precipice of having a constitutional amendment struck down. Courts throughout the world have engaged in judicial activism — in ways subtle and otherwise. Perhaps the only constant in any comparative study of judicial activism is the rhetoric invoking ‘the people’ and their rights. Of course, the ideal of a no-holds barred check on inept politicians may sound attractive, particularly in the Third World. Why shouldn’t the senior judiciary step in and protect the ‘people’ when others fail? Why should so-called ‘principles of constitutional law’ matter if ignoring them results in justice? Implementing such ideals in practice, however, is hugely problematic. The increasing exercise of the suo motu power by the Honorable Supreme Court should worry all those who care about separation of powers. Exercise of suo motu powers in instances such as the Hajj scam, NICL and the Attiqa Odho cases etc. is problematic on a basic level. First, it sends out the signal that if the subject matter is glamorous or if the players are big enough then the Supreme Court intervenes. This is speedy justice amid media spotlight. But there is nothing glamorous about the rule of law and the common man who suffers years of litigation and awaits his cases to be taken up by superior courts does not deserve this. Also, consider that if tomorrow we adopt universal health care, enact land reform, repeal laws discriminating against non-Muslims should the judiciary, on its own under suo motu powers, have the right to step in and tell our representatives what to do? These are questions of principle, not just results. Second, for each case that the apex court takes up under suo motu jurisdiction, there are many others that it does not. Cases involving the military establishment and spy agencies are hardly processed with the same rigour as those involving the democratic leadership. There is also the consistency problem; by not letting each case go through the usual investigative stages the court suggests that some cases matter more than others. But how does it engage in this balancing exercise? What message does it send to litigants, lower judiciary and investigative agencies? There is no merit to the argument that if one institution is found wanting, another should start overstepping its bounds. Surely, a failing judiciary should not and does not give the legislature or the executive the power to usurp the judicial function. Apart from the suo motu
jurisdiction, cases taken up under Article 184(3) have raised the issue of
judicial restraint. The fact that the apex court took on cases relating to
economic matters (sugar pricing) muddies the waters and results in an
inflation of orders which adversely impact the court. Matters relating to
prosecutorial discretion and national security (Memogate) should be left to
the executive. Active involvement by our Supreme Court in such matters
sullies the appearance of impartiality. One Lawyers’ Movement will never
be enough to cleanse reputations. And like it or not, reputations of
institutions are uncomfortably enduring. There are many areas where the judiciary can use its new found strength to help the common man, i.e. make a real difference. Among these can be guidelines relating to protection of vulnerable litigants and their privacy in juvenile courts, sexual harassment and rape related cases. Any argument based on precedents from courts in other countries (for instance, India) that also overstepped their bounds is a non-starter. Two wrongs do not make a right. The reason I feel a deep unease about most analyses of judicial activism is that people adopt forms of consequence-based reasoning, i.e. if the result is good/acceptable to your sense of justice (because it uncovered corruption for instance) then the exercise was worth it. If our analysis of a particular judicial approach is to be guided through an ad-hoc approach and on case-by-case basis then let us not pretend that we stand for a system. For a system adopts principles and not ad-hoc approaches. It adopts ways of acting and, more importantly, ways of exercising restraint. Each time we silently accept a court expanding its sphere of activity and overstepping the judicial function we undermine democratic power — not because judges may be against democracy but because we cannot hold judges democratically accountable. Many today are advocating judicial restraint in Pakistan, not out of some hidden desire to protect politicians but because they care about the sanctity of the judicial function, its legitimacy and its inherent limits. We need to have this debate even if it does not serve strategic interests of certain quarters. Perhaps the most oft-quoted sentence in the entire corpus of constitutional law jurisprudence is Chief Justice Marshall’s pronouncement in Marbury v. Madison: “It is emphatically the province and duty of the judicial department to say what the law is.” But nothing involving lawyers is certain for long. In the last few years, a body called the Federalist Society, advocating judicial restraint, has gained force in the USA. Aptly enough, the motto of the Federalists reads: “..say what the law is, not what it should be.” There is something deeply persuasive about that. The writer is a Barrister and an Advocate of the High Courts. He is currently pursuing his LL.M at Harvard Law School and can be reached at wmir.rma@gmail.com
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