‘LAW reports’ are a series of books that publish judicial decisions known as ‘judgements’ or ‘orders’ from a selection of case law decided by courts. Not every decision of a court is worthy of publication. The decisions meriting publication are those which decide a question of law. When a particular judicial decision is published, the law report series not only reproduces the decision verbatim, but also provides citation and reference.
The concept of judicial precedent, or ‘stare-decisis’, which saw its origin in England following the Norman Conquest of 1066 with the establishment of the ‘common law’ courts, is ingrained in Pakistan’s legal system by virtue of Articles 189, 201 and 203GG of the Constitution, which ascribe precedential value to the decisions of the Supreme Court, the high courts and the Federal Shariat Court respectively.
According to Section 5 of the Law Reports Act, 1875, only a judicial decision which is certified by a court or tribunal to be published in a law report ought to be so published, and it ought to be “based upon or enunciate a principle of law or decide a question of law which is of first impression or distinguish, overrule, reverse or explain a previous decision”.
This is where the problem lies. While many judicial decisions published in law reports do decide a question of law, a great many do not. One often comes across reported decisions which are still discussing stale matters, such as: the scope of a ‘civil revision’ pursuant to Section 115 of the Code of Civil Procedure, 1908; or the scope of ‘presumption as to documents 30 years old or older’ pursuant to either Article 100 of the Qanun-i-Shahadat Order, 1984 or Section 90 of the Evidence Act, 1872; or the scope of ‘bail’ pursuant to Section 497 of the Code of Criminal Procedure, 1898.
Substandard judicial decisions should not be in law reports.
All the above provisions of law, and many more such provisions, continue to remain the subject of regular discourse in reported cases, even though the statutory provisions under discussion have remained on the statute books for over a century.
It leads one to wonder why the scope of a legal remedy such as a ‘civil revision’ has still not been settled, even after a century of litigation, and hundreds of thousands of cases being decided under the relevant law. If the law has been settled, then we do not need any more reported judgements on the point, and conversely, if the law on such an elementary point has not been settled in over a century, one has every reason to apprehend that it shall not stand settled in the next millennium either.
There is also another drawback to the entire ordeal. Many judges, when they attempt to undertake an analysis ab initio of stale matters, do so half-heartedly and produce a decision which in itself is substandard, and creates more confusion by distorting jurisprudence.
The problem has its roots in the McNamara Fallacy (also known as ‘the quantitative fallacy’). Robert McNamara was the US secretary of defence who popularised decision-making based on quantitative metrics.
Many judges at the high court level, to demonstrate progress or be taken note of by the Supreme Court for purposes of elevation, try to approve decisions for reporting which do not by any stretch decide any question of law. Many such decisions do, in fact, cite or reproduce past precedence, but that is merely ‘window dressing’ to justify the reporting of the case. For the actual decision decides no new or novel point of law, and simply parrots past decisions. Consequently, one is left wondering which past decisions have been overruled, which are per incuriam (bad law) and which are good law, because the judicial decisions in question are as ‘silent as the grave’ when it comes to such questions.
How may reported judgements does a judge have? How many pages does the judgement span? How many cases has the judge decided?
How many case laws does the judgement cite? So long as these metrics remain a dominant measure to gauge the standing of a judge, it is conceivable that we will continue to have substandard judicial decisions being printed in law reports.
Some of the landmark judicial decisions in history, such as Marbury v Maddison, Rigs v Palmer, R. v Sussex Justices or Brown v Board of Education, hardly cite any case law. Though they cite principles and legal theory.
The Supreme Court, and especially the high courts, need to recognise the McNamara Fallacy in order to prevent law reports from being contaminated with decisions which are unworthy of publication.
The writer is a barrister.
asadulmulk@legalparameter.com
Published in Dawn, January 9th, 2025
