DO THE
JUDGES MAKE LAW?
By:
MUHAMMAD USMAN RAMZAN
Advocate
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
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.[1]
Benjamin 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
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]
A celebrated jurist Robert Luce throws
some more light upon the importance of precedents by terming the judges as
legislators while disapproving the dictum lay 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.”[4]
Robert 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
There are occasions when 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. In this respect in
“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 haddod laws. It was held to be right of heirs of deceased or victim in case of injury.[13] Any 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 31-03-2000.[14] Premature compulsory retirement without notice by way of summary procedure is against injunctions of holy quran and sunnah. [15]Termination 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 the 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.[18] Provisions 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]
So, the precedents have implications on the legislative drafting process. The 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.” [20]Before 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. [21]Careless 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 forth coming law.
[1]. “Judicial Review of Public Actions” by
Justice (retired) Fazal Karim
Supreme Court of Pakistan
[2]. PLD 1966 SC 854 page No. 920-923
[3]. “Judicial Review of Public Actions” by
Justice (retired) Fazal Karim
Supreme Court of Pakistan J
[4]. Dash v Van Kleeck; 7 Johns. 498
(1811)
[5]. Robert Luce, Legislative Problems, 1st
Edition 1935, Houghton Mifflin Co.,
[6]. Robert Luce, Legislative Problems, 1st
Edition 1935, Houghton Mifflin Co.,
[7]. Robert Luce, Legislative Procedure, 1st
Edition 1922, Houghton Mifflin Co.,
[8]. PLD 2001 S.C. 18
[9]. PLD 1989 F.S.C. 31
[10]. Sajwara v. Federal
Government of
[11]. Ashfaq Ahmad v. Govt.
of
[12]. Muhammad
Ismail Qureshi v.
[13]. Habib-UI-Wahab Alkhairi v. Federation of
[14]. M. Aslam Khaki v. Muhammad Hashim; PLD
2000 S.C. 225
[15]. PSC 1989
[16]. Shahid v.
[17]. Suo Motu Case No. 1/K OF 2006; PLD 2008 F.S.C. 1
[18]. Said
Azam Khan v. Adam Khan; PLD 1999
[19]. Government
of N.W.F.P. v. Said Kamal Shah; PLD 1986 S.C. 360
[20]. CSR Report for Congress, Order Code
97-589, updated March 30, 2006, Statutory Interpretation: General Principles
and Recent Trends, Congressional Research Service, the Library of Congress by
George Costello, Legislative Attorney, American Law Division.
[21]. G.C. Thornton, Legislative Drafting,
Edition 1970, Butterworths,
[22]. Ibid, p. 109-110
[23]. Ibid, p. 108