This topic is center of heated debates in the legal fraternity of Pakistan after recent move of Pakistani apex court to adjudicate on some complicated articles of constitution of Pakistan in its recent adjudications. The Judges of apex court were widely criticized of making the law rather than explaining and expounding the law and they were blamed of transgressing from their legal duties and creating imbalance between institutions of the state. so this heatedly debated topic draw urgent attention of legal minds to critically analysis and I have tried to crack this Gordian knot after thoroughly studying views of some renown jurists of past and present.
in this article theories of adjudication and stare decisis have been widely discussed because it is quite impossible to reach at convincing conclusion by bypassing these founding bricks of this debate theories of adjudication and stare decisis are sine qua non to expound this complicated topic. However the application of these theories in Pakistani legal system and their outcome require wide research and materials which unfortunately is not available due lack of research by Pakistani jurist on the said topic ,therefore my views on under reference topic are based on case laws which shed light on Pakistani legal system and its stance on the topic.
It is a well-established fact in common law that precedent is source of law and Pakistani legal system is based on common law. Thus, it will not be wrong to say that precedent holds great significance in our legal system. Precedents are decisions of court which have force of law and these judgments impliedly or explicitly contain legal rules and principle. The theory of precedent somewhat allude to that judges are law makers so as the legislature makes the law. Historically speaking the theory of precedent was disputed due to the reason that allocating authoritative force to decisions of judges means judges can make the law.
Therefore giving any role to judges in legislation was subject of great difference amongst renown jurists of past, among them Bacon, Hale, and Blackstone had opined that judges have only to explain and discover the law ,thus they are prevented to make law on the other side, there were also some great jurists such as Bentham , john Austin ,Salmond ,and lord Dennining who have opposed this theory and they had advocated judges can make law this is called creative theory of adjudication.
Declaratory theory of adjudication states that judges are discoverer of existing law and they can explain and apply it on emerging cases this theory does not accept any role for judges to make law. This theory was given by Sir Matthew Hale in 17th century who is called founder of this theory.He said while commenting on the role of judges in adjudication.He maintained the importance of judicial decision He said that the decisions of court are weightier in evidence than that the opinions of the private person ,thus these the best evidence of past event but he also negated the weight of precedent as much a law which is promulgated by parliament. At the end it may be concluded that judges cannot make the law but they can only explain it.
Moreover, Sir William Blackstone is well known exponent of declaratory theory has said that common law is based on customary laws and the role of judges is to discover the dormant customs and explain through their speaking judgment to the public about the validity of the said custom. He has showed total disagreement about creative theory while he said that judges even cannot alter or amend the pre-determined law of the land then how it is possible for them to make a new law. Judges are only required to discover law and exposit it with true spirit of legal principles. Justice Joseph of united states is Another famous jurist and famous for his support of declaratory theory has said that it widely disputed that judicial decisions constitutes law it can merely be said that judicial decisions are only the best evidence of that what are the laws and what are not the laws they have only expository value and they cannot make laws.
This theory suggests that judges have a prime role in making of the laws of land, along with explanation of the law they also help to modify and make the laws of the land. This doctrine was also supported by famous jurist Bentham,Salomond and so on. Bentham was a staunch opponent of common law and he criticized it vehemently. He was right to say that common law is like a dog law which is made by judges, where dog owner intends to teach his dog a lesson he waits till time when dog will do the said act the owner will get that opportunity and beats dog to teach him that do not this act again, in the similar way judges do in the common law they will punish a culprit in the same way.
He has criticized common law over its retrospective effect which he described as shambolic. He opined that judges are maker of the law in common law there is no denying facts of it. On the same foot prints goes the views of salomond and lord Dinnining ,they said that laws are created by judges as common law is existed in a dormant form, nobody knows it until judges expound it ,thus the judges are the ultimate makers of the law. Moreover laws are uncertain and changing ,so judges has to find them explain them and modify them and validate them, thus judges have a permanent role in creating laws. Salomond has regretted the exponents of declaratory theory and advocated creative theory by pointing at the very existent of law that laws are product of judicial will and opinions therefore judges are creature of law.
Bodenhiemer is a renown jurist who has taken a different line from all other jurists of past and present. He has denied that both theory of adjudication and said that neither judges can make can nor they can discover it because there are different kind of decisions which need special dealings at all.there for he has prescribed five situations which require different method to reach at concluding findings. The first and foremost is there is a clear-cut rule of common law to adjudicate the given case in according with principles of common law in this situation no question of creating and discovering of law by the judges can arise at all.
The second situation is when common law and precedent do not guide judges to reach at a conclusion judges will certainly resort to social rules of the community and apply proper law by discovering law from reported decisions The third situation arises when judges will be required to give decision according to the state policies. in his case judges will take into consideration the prevailing social and economic conditions of the time and pronounce a decision accordingly. The fourth condition which has been expressed by Bodenhiemer when judges struck to decide in-between two competing interest here judges are required to see whole social fabric and prevailing circumstances.
The last but not the least where Bodenhiemer has also inclined towards theory of creative adjudication and accepted role of judges to make laws. This situation will arise when common law, statutory rules, precedent do not possess any clear guidelines to help judges to reach at a conclusion, and social fabric is also devoid of any such leading lines then only judges has been given authority to make law and decide the said case in accordance with their fine sense of judgment.
Islamic law and natural law are not compatible with each other natural law has not always been affiliated with God. It has followed reason and it says what is law or not it dependent over that it is right or wrong. Islamic laws says command of God is right and it is the law. Moreover Islamic law does not favors declaratory theory of adjudication and discretion of judges in deciding hard cases is based on IJTIHAD and Qiyas. Qiyas and Ijtihad says that whenever any hard case arises and the Holy Quran ,Sunnah and Ijma are silent on the matter in this situation Mujtahid has to find out any reason which has already existed in matter and the matter has been subject to a rule due to that reason (ILLAH) and similarly mujtahid should apply the said rule over said subject matter which consists of same illah and reason. He should not go for any his own discretion and opinion but he must always ponder over qiyas and Islamic rule which can easily be found in the subject matter.
At the end it has been concluded that Islamic law do not have any space for judge made laws and there it is a God –made law if Islam leaves any loophole to induct man made laws in it then it will be quiet difficult to practice strict laws of God which are ultimately beneficial for humanity and at the end it may be concluded that Islam regards judges as discoverer of law and supports declaratory theory of law. This all demands that judges must be well-versed in Islamic law to thoroughly study and find out rules of Islamic law and apply them on hard cases. Islam law does not leans toward creative theory and judge –made law and thus precedents has no value in Islamic law if it is antagonist to Islamic injunctions and principles. However this stance of Islamic law has made Pakistani legal system very complicated which will be empirically studied in the upcoming paragraphs.
It is evident from the facts that Pakistani legal system is mixture of Islamic and common law which has made the theory of adjudications very complicated to apply and follow. Islamic law does not support creative theory and common laws accept a major role of precedents in any legal system there for it is not easy to sideline Pakistani legal system to any one theory of adjudication and it requires to study cases individually and uniform declaration about Pakistani legal system can not be made so for as theory of adjudication is concerned because in some cases even jury member differs from each other one leans toward declaratory theory and other support creative theory lets take a glance over some famous cases which has been decided by superior courts of Pakistan and examine these case law with special reference to theory of adjudications
it is simple case of murder committed by a person named as dosso in lora lai district of Baluchistan where FCR law were enforced in that time. this case was brought to lower jirga and lower jirga convicted dosso of murder and later on relative of dosso went to Lahore high court for appeal and Lahore high court has reversed the decision of lower jirga and acquitted dosso from murder then state of pakistan has appealed against Lahore high court decision and got the case reversed in their favor. The decision of supreme court has raised many point of law and it is pertinent to mention that FCR were called null and void due to its repugnancy with article 5 and 7th of constitution of thus dosso were acquitted by Lahore high court.and supreme court has decided case on 13th October 1958 and prior to this on 7th October drastic changed has occurred by imposition of martial law and 1956 constitution was abrogated and FCR was reimposed thus supreme court had to decide case in according with martial law and FCR thus judges of jury were divided on this matter justice Munir has supported fcr and martial law and supported positivism and justice corniclius has leaned toward declaratory theory.
Chief Justice Munir has argued that validatity of new law will be judged by its own rule after becoming victorious and successful new law will prevail thus case will be decided according to new law which is law of martial and fcr.on the side justice Cornelius has said that human rights exists even do not support them and even did not recognize them thus case should be decided according with human rights, so here chief justice Munir has supported positivist approach and try to create law and justice corniclius goes in support of declaratory theory of adjudication in the same case.
Two petition were filed one in Lahore high court by Asma jilani against illegal detention of her father Malik Ghulam jilani and the other petition was filed by Mrs Zania Gohar for release of her husband Altaf Gohar. Both High court has refused to entertain petition due want of jurisdiction and argued that High courts were prevented to entertain cases against Martial law in clause 2 of court jurisdiction act of 1969 so Asma jilani has appealed against the decision of Lahore high court in supreme court and superior court has held that not Pakistan was foreign land which had been invaded by General Yahiya khan nor it was an alien territory which has been affiliated by army.
The legal issue raised in this case have great significance chief justice Hamood ur Rahman has adopted Cornielius view point and said that we need not go to western theories of jurisprudence inspite of our of own Grundnorm He referred Resolution of Pakistan a grundnorm eventually it became clear in the case that chief justice has sided with declaratory of adjudication which was uttered by justice Cornelius earlier in Dosso vs. state of Pakistan. So this decision of apex court alluded that Pakistani legal system favors declaratory of adjudication.
It is legal doctrine which makes judges duty bound to follow previous judgments of superior courts which have force of law and precedent thus, judges are duty bound in common law system to discover the law thorough precedents and other legal materials. However, the declaratory theory of adjudication shows extra-adherence towards precedents which is debatable in legal context. There for Blackstone has rightly mentioned exception in following theory of precedent and said that when earlier decision has violated rules of natural justice, divine law or other legal principle of justice then it cannot be followed in subsequent judgments similar position of declaratory theory has been pointed by house of lord in 1852 that it posses all inherent powers that it can correct.
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