Sunday, July 31, 2011

New Judicial Paradigms

Pakistan is undergoing a metamorphosis in its geist. The whole of society is at a loss for new paradigms through which it can explain and chart the future in an uncertain and increasingly complicating world. I think the paradigm that is accepted in these times will have impact on the very existence of Pakistan. If by chance, luck or design we reach a state of mind which explains the reality and determines out responses sufficiently accurately then Pakistan will survive to become a successful species. If on the other hand our collective conciseness errs and is off the mark, then Pakistan may become extinct.

I for my part, being a lawyer, consider that our judicial mind should accept the following two concepts which will bring our judicial wisdom, a part of our collective wisdom, closer to understanding reality and giving our polity an optimal chance of survival. The concepts are:

(1) procedural justice; and
(2) primacy of 'freedom' in deciding difficult cases.

The first is needed to increase clarity and certainty of the procedure of laws so that individuals can better understand the system and forecast the likely consequences of their actions. Lacking clarity and uncertainty leads to chaos in which individuals are not only stressed but also prone to wrong prognosis of the future consequences and hence a loss of valuable and limited resources. I must add that this is not a new or a novel concept but rather it was highly valued by our older judiciary but has lost its significance in the last few decades due to exigencies of various judicial predicaments.

The second is Ronald Dworkin's idea of freedom as in intrinsic good and any decisions policy or action which increases freedom, all things being equal, should be regarded as superior to those which do not. Now in situations where the laws are clear, this idea may not be invoked although I would advocate striking down laws on the ground of decreasing freedom without any added benefit or utility in some other material way. However, that may be too much for our judiciary and legal fraternity to accept. Hence I urge that in difficult decisions we must measure the quotient of freedom to determine the rightness and wrongness of decisions.

The two concepts when put in practice together increase the certainty for individual decisions and at the same time, if the certainty is still found lacking, freedom will encourage risk taking, bravery, initiative and enterprise, the founding blocks of prosperity and growth.

Human spirit yearns for freedom while it needs tools to increase its freedom. Certainty in laws and procedures gives it the tools or enables it to experiment in freedom and risk taking.