A Comparative Review Of Supreme Court Leadership In The United States Of America And Pakistan
A COMPARATIVE REVIEW OF SUPREME COURT LEADERSHIP IN THE UNITED STATES OF AMERICA AND PAKISTAN
By Dr. S. M. Haider, Joint Secretary, Pakistan Law Commission Supreme Court of Pakistan
The Chief Justices of the Supreme Court of the United States of America have established a special relationship with Bar associations, law schools, state judiciaries and the American public, each of which demands a commitment of valuable time to writing and delivering speeches at meetings, conferences and seminars. The Chief Justices of the Supreme Court in Pakistan have been successful in finding time to establish meaningful relationships with the Pakistan Bar Council and the High Court Bar Associations. The Chief's duties as head of the Federal Judicial System and leader of the Supreme Court have been an integral part of the office, from the beginning, in U.S.A. In both the United States of America and Pakistan, the, judicial establishment is kept running efficiently and smoothly because Chief Justices in the two countries gave it a sense of direction and purpose, a task which the Chief handles by personal contact, formal and informal. In their primary role as leaders of the Supreme Courts in Pakistan and the United States of America, a Chief's success depends upon his ability to coordinate the functioning of the associate justices and to maximize harmony and cohesion by creating an atmosphere of collegiality and friendliness. Affability, warmth, friendliness and empathy appear to be the keys to successful judicial leadership in the two countries. In addition to keeping the dockets uptodate, the Chief Justices in the two countries demonstrate their managerial leadership by guiding the conferences, assigning opinions and in knowing when to write the opinion of the Court. They have demonstrated a sense of timing and a perspicacious system of the legal factors that must be taken into account prior to the final decision of the case. This is true of justices John Rutledge, Oliver Ellsworth, John Marshall, Roger Taney, Salmon Chase, Morrison Waite, Melville Fuller, Edward While, William Taft, Charles Hughes, Harlan Stone, Fred Vinson, Earl Warren, Warren Burger and William Rehnquist. This is equally true of Chief Justices Muhammad Munir, A. R. Cornelius, Hamoodur Rahman and Muhammad Haleem in Pakistan.
The primary duty of Chief Justices in the United States of America is to preside over the Supreme Court hearings which must scrutinize over 4,000 cases annually, and discreetly choose 150 from that number to hear on their merit and to dispose of written opinion. The Chief Justice of the United States of America also performs the role of (1) chairman of the Judicial Conference of the United States, the governing body for the federal judicial system consisting of judges who represent the various federal courts; (2) chairman of the Federal Judicial Centre, a research, training and planning arm of the federal judiciary whose seven‑member board meets four times annually; (3) supervisor of the Administrative Office of United States Courts, the housekeeping agency which employs over 500 people; (4) chairman of the board of the Supreme Court Historical Society; and (5) membership on the Boards of Trustees of the National Gallery of Art, of the Hirshhom Museum and Sculpture Garden, and of the Smithsonian Institution. In addition, some twenty congressional statutes suthorize specific duties of the Chief as head of the Supreme Court and over thirty Acts of Congress define duties related to the administration of the federal judiciary. The Chief also may be asked to perform extraordinary tasks either at home or abroad by the President of the United States. The Chief Justice of Pakistan presides over the hearing: conducted by the Supreme Court and also acts as ex‑officio Chairman of the Pakistan Law Commission. He acts as ex‑officio Chairman of the Indus Water Treaty Commission. The Chief Justice also perform the role of the Chairman of the Supreme Judicial Council. The Constitution of Pakistan also authorizes the Supreme Court Chief Justice to render advice to the President of Pakistan, if any advice is sough by the President. He acts as an administrative head of the Supreme Court administration and coordinates the activities of the Provincial High Courts in certain matters. He administers the oath of office to the President of Pakistan and to the Chief Justice of the Federal Shariat Court:
The office of Chief Justice carries overwhelming authority, responsibility, influence and prestige in both the United States of America and Pakistan. The Supreme Court's workload has changed radically during the past decade in both the countries. There has been a considerable disparity in the number of opinions the Chiefs of the Supreme Court in Pakistan and the United States of America have authored in the recent past. Once a nominee has been confirmed and has taken the oath of office, the constitutional phrase "good behaviour" is the only qualification for remaining in office, in the United States of America, as Chief Justice for life. In Pakistan, the Chief Justice retires when he attains the age of 65 years. The Chief Justice also coordinates the academic activities with Supreme Court: in other parts of the world and maintains academic liaison with the International Court of Justice. In Pakistan, the Chief Justice has, on some occasions, been appointed as Chairman of the Inquiry Commissions. For instance, Mr. Chief Justice A. R. Cornelius was appointed as Chairman of the Pay and Services Commission in 1959.
As the duties of the Chief Justices in the two countries have expanded in the past 10 years, they have also become overwhelming. But the office is manageable and the Courts have built their own administrative systems. The Chief Justice must inevitably deal with budget and with the general procedural efficiency of the Supreme Court system in the two countries. Whether the Chief is dealing with his colleagues on the Bench, foreign dignitaries, Congressional leaders, the Presidents of the American Bar Association, he does it with political acumen and social grace. The Chief Justice of Pakistan also demonstrates these qualities in his dealings with the Pakistan Bar Council, with the National Assembly and the Senate of Pakistan as well as with foreign diplomats stationed in the country.
Chief Justices, like all leaders, lead through "knowledge, persuasion, intelligence, craft, example, patience, inspiration and compromise", in both the United States of America and Pakistan, and they also remain alert to the necessity of maintaining the highest possible degree of social affability among the justices. The Chief Justices exhibit concern for the well‑being of their colleagues and retain the goodwill of their brethren throughout their tenure in office.
Since cases are decided by a vote of the justices, the Chief's role in the process of arriving at the final decision is a crucial factor in determining whether he leads the Court. The Chief Justices in the two countries know how to maximize administrative authority while minimizing the elation that comes with success. The Chiefs in Pakistan and the United States of America attempt to present a face to the public that conveys a collective image on harmony, statesmenship and wisdom. The Chiefs have not only conformed to the respective Constitutions, but have remained in tune with the transcendent justice.
Central to the decision making of the Supreme Court is the conference, a weekly meeting in which the justices meet, discuss and decide cases, and it is in this conference that the Chief, has a notable advantage over his colleagues. The conference is the matrix of leadership of the court", and the Chiefs in Pakistan and the United States of America exert personal and intellectual leadership to harmonize differences of opinion, increase social cohesion and move the work on to completion. While it is not precisely known as to how the Chief Justices deal with their colleagues, it is known for certain that their warmth, their magnetism, the respect, affection and esteem in which they are held by their colleagues, ensure the best results. Most of the Chiefs have been extremely able personal leaders in both Pakistan and the United States of America and more often than not they have been deferential to the intellects of others. Waite, Fuller, Taft, Winson and Warren were warm, decent human beings who possessed an ability to command. Similar has been the case of A.R. Cornelius, Hamoodur Rahman and Muhammad Haleem in Pakistan. Chief Justice Muhammad Haleem is popularly labelled as an angel of the Supreme Court. The Chief Justices usually give the conference a firm leadership. However long it takes and by whatever route arrived at, the conferences in the United States of America and in Pakistan terminate with the justices deciding to decide. It needs to be emphasized that the final opinion is a collegial affair in the two countries. The Chiefs remain aware both in Pakistan and the United States of America of the need to conserve time within the limits of fairness to both sides in the dispute and with allowances for questions from the Bench. The Chief Justices, while meeting the requisite desideratum in their opinions, are ranked among America's and Pakistan's outstanding judges.
The social, intellectual and managerial leadership provided by the Chief Justices in Pakistan and the United States of America has been qualitatively even. Of course, the reasons for their exceptional leadership are complex, and in large measure dependent upon imprecise and intrinsic qualities. But it has been possible to appraise the impact of the Chief Justices in both Pakistan and the United States of America on alterations in the Court's internal procedures, and on their influence as judicial architects. Personality, which encompasses a host of characteristics, has been a major determinant of effective leadership in the two countries. The Chief Justices in the two States are men truly learned in the law and temperamentally having leanings towards scholarship. They remain comfortable in the symposia and the seminars. Their presence has been qualitatively as significant to American constitutional development as the doctrinal concepts propounded by the Chief Justices of Pakistan are valued for the growth of Pakistan's Constitution. Although the Chief Justices in Pakistan and the United States of America have no votes and have only a small constituency of legal practitioners and academic philosophers who are unanimous in their support of the Supreme Court, the Chief Justices, when confronted with controversial questions, have found it convenient to retreat graciously, where possible.
In any system of Government that has attained a level of maturity and stability, all of its efficiency will be confined to a great extent, by tradition and custom, to forces as significant as any in moderating ‑the efficient conduct of those in power, and the Chief Justice is no exception. Their role is being kept within defined limits by the office procedures most of which were established by their own predecessors. As formidable as these constraints are, the office of Chief Justice, both in Pakistan and' the United States of America, possesses enough plasticity to permit the incumbents considerable r latitude and all have left a personal imprint on the Court work and in a greater' or lesser degree on the respective constitutional development.
In spite of the increase in duties of the office over the years, the Chief Justiceship in Pakistan and the United States of America still requires, as it always has, that the incumbent be a judge whose views of the Constitution and of the law must be thoughtfully formulated and expounded in a written opinion, and his role as a jurist cannot be discounted. He need not be the greatest mind on the Court, but he carries with him the intellectual weight to retain the respect of his colleagues and of Court constituencies on the Bench, at the Bar and in the other members of the legal profession. The Chief Justices in Pakistan and the United States of America have been able to recognize the diverse talents on the Bench and used them both to their own advantage and to that of the Supreme Courts and the nations, for in the final analysis, a Chief's, place in history is determined by the calibre of the product for which he is responsible. The decisions and the opinions with justifying reasons reflect the Chief's leadership equally in the two political settings. It is obvious that the American Chief Justiceship and the Chief Justiceship in Pakistan is an office having power, prestige and authority second only to the Chief Executive. The Chief Justices in America and in Pakistan have been primarily outside the spotlights of the mass media. They do not hold nationally televised Press conferences, they do not address "roaring crowds", they do not negotiate' with Heads of States and do not hold leadership of political parties. They are inevitably responsible for the smooth functioning of one of the most respected and independent branches of the Government. Even though they manage a smaller group than is managed by the Chief Executive, their leadership, technical know‑how and scholarship are attuned to the teachings of history.
The Chief Justices in Pakistan and the United States of America have been sensitive to institutional limits: the language of the Constitution, the judicial gloss created by their predecessors and the disciplines of their respective laws, and they have always remained alert to the political 'and social needs of the times. When they do face the public, they act with restraint and dignity and without political or personal rancour against their critics. They demonstrate extraordinary talent in the performance of their multiple roles and their efficiency remains unquestioned. The record of their services has been uncommonly free of petty partisanship. It is a record to which both the United States *of America and Pakistan can point with justifiable pride.
The correlation now attempted by the Supreme Court Chief Justices in the United States of America and Pakistan between historical and analytical jurisprudence is the result of exploring and trying to discover a common factor for at least some areas of each. The common factors' indicate that status is giving place to contract. On the strength of this correlation, it can be said that in the two countries the related aspects of one single integrated reality of jurisprudence have, made their prominence felt in the legal profession. They have disclosed not only their mutual relevance, but also their consistency. This correlation can be explained in terms of legal theory. It indicates that the movement of the progressive society of the United States of America, where movement from status to contract is visible, is influencing the legal norms in Pakistan: The developments in the United States of America and Pakistan serve the social purpose of harmonizing law with opinions. The social opinion in the United States of America has always been more or less in advance to the law. For that reason, the progressive and developed society of America promotes the effect of equity and legislation to harmonize the transition from status to contract. This transition is reflected in Pakistan as well. Thus, Pakistan can also be grouped in the category of progressive societies. Time has equated legal evolution with social evolution in the two countries in such a way that the former has hitherto been a necessary condition for the latter. It is, therefore obvious that the Supreme Court leadership in Pakistan and the United States of America is attempting to establish logical consistency, independence and completeness of analysis, as would be required for any calculus of logic.
The Chief Justices in Pakistan and the United States of America identify devices designed to enmesh the legal result with the justice of the case. The law is seen in the two political settings as maximizing the equal opportunity of every man and it is seen to establish the doctrine that all human beings have the right to equal respect and consideration. The Supreme Court justices in Pakistan and in the United States of America have attempted to prove that human beings and human ways of life have great intrinsic worth. They have employed t various interpretations to justify the doctrine of equal respect.
The dispensation of justice by the Supreme Court Chief Justices in Pakistan and the United States of America has persistently equated their opinions with values such as "equality" and "welfare". The arguments of justices have been perceived to have a distinct and specific nature. Justice appears to them to be all embracing legal value under which other values, such as liberty and equality, can be subsumed. Justice is the bond of society and is the condition in which every man can identify with society and accept its rulings as his own. Here we find the significance of generality in the laws of Pakistan and the United States of America.
The standards of judicial propriety maintained by Supreme Court leadership in the two countries have been very high: no honorary degrees, no direct contact with other branches of Government no partisan activity, and no extensive involvement in social causes. Their standards of judicial propriety have become increasingly sophisticated over time.
The Supreme Court leadership in Pakistan and the United States of America has very often equated judicial law making with the dictates of reason and the commands of the constitutional text. The Supreme Court Chief Justices in the United States of America and Pakistan decide cases on the basis of general principle that the judges are committed to applying consistently in all similar cases. The liberal political theory, that is finding its access to Pakistan, is producing constitutional theories, identical to that of the United States of America. It may motivate judges to arrive at conclusions according to liberal premises. But each perspective depends on presuppositions that are in consonance with the respective national polities of Pakistan and the United States of America. Interpretive can, however, adequately link .the Supreme Court leadership of the present era with the past on the basis of a presumed share understanding of the role of judicial reasoning in the two settings.
Such a consensus or such an understanding would, however, render constitutional interpretations necessary for attending to the changing demands of the changing times.
The main constituent of the judicial process assumed by Supreme Court leadership in both Pakistan and the United States of America is precisely that it must be genuinely principled, resting, with respect to every step that is involved, on analysis and reasons quite transcending the minimum result teat is achieved. The Chief Justices appear to be inclined to enforce legal norms that are clearly implicit in the written Constitutions. Many observers believe that the practice of interpretivism and the notion of neutral principle provide the necessary framework for their theoretical validity. Interpretivism has enabled the Chief Justices of Pakistan and of the United States of America to implement the rule of law by determining the route to social salvation. The Chief Justices' choices are evolving as a result of the grasp of the political theory that they serve. The Chief Justices in the United States of America and in Pakistan seem to have been cognizant of the fact that the independence attained by Pakistan and the United States of America is meant to make men free to develop their faculties; and that the Governments in the two countries are expected to release deliberative forces so that they may prevail over the arbitrary. Sometimes the Chief Justices have valued liberty as a means to a higher end. They believed liberty to be the secret of happiness. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that public discussion is a political duty; and that this could be a fundamental principle of the respective Governments. They have recognized the risks to which all human institutions are subject. But they have known that it is hazardous to discourage hope and imagination; that fear breeds repression; that repression, breeds hate; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies. Believing in the power of reason as applied through arguments and discussion, they have promoted the cause of the rule of law in Pakistan and the United States of America.
The rule of law, according to Supreme Court leadership in Pakistan and the United States of America, is meant to protect the people against the exercise of arbitrary power. They have, therefore, developed the concepts of neutrality and consistency in ways that are adequate for the task. Whether it is John Marshall or Warren Burger or William Rehnquist in the United States of America and whether it is A.R. Cornelius, or Hamoodur Rahman or Muhammad Haleem in Pakistan, they remain interested in preserving the rule of law and in undertaking steps that are adequate for the task. To be coherent, the Chief Justices in the two countries have required that the understandings of social institutions should be stable. They have traced historical continuities between the institutions. They have shared proper conception of the role of judicial reasoning. Their choice is restrained, but explaining the restraints demands a sociological examination of the ways in which the two systems within which they operate are deeply entrenched. Here lies the significance of the role played by the Supreme Court leadership in the United States of America and Pakistan.