Some of the greatest legal principles that exist today had their origins in a dissent.
My favourite example of this is a 1919 case that came before the Supreme Court of the United States called Abrams v United States. The case held that distribution of leaflets in New York City supporting Russia and calling on workers to unite in a general strike was a conduct punishable under the Espionage Act.
The majority opinion is a forgettable mess of paranoia. Yet, the case proved historic because of the dissent penned by Oliver Wendell Holmes which laid out an immortal metaphor for free speech: Holmes believed that the best test of truth was for it to get itself accepted in what he called the ‘marketplace of ideas’.
Today the ‘marketplace of ideas’ metaphor is one of the most popular phrases used to justify the acceptance of divergent and controversial opinions in a democracy. As Andrew Cohen, writing for the Atlantic, put it: “If there is a more relevant or powerful passage in American law, I am not aware of it. Relevant because it expressed a universal concept – free trade in ideas – that 125 years after the Constitution was ratified still had not taken hold in our democracy.”
If Holmes taught us anything, it is that we should not fear the dissenting voice. The freedom to voice dissent is a fundamental pillar of a well-functioning democratic system. And I would add it is just as important for a well-functioning judicial system.
So where are our great dissenting opinions? The ones that stir the soul and make us realise, perhaps years later that we took a wrong turn in the past. Barely any judge dissents at the High Court level. While our Supreme Court, barring a few exceptions in recent years, is nowhere near the dissent prevalent in the United States.
Although numerous Division Benches and Full Benches hear cases every other day in the High Courts of the country, the pesky concept of seniority seems to prevent many judges from writing their opposing views in dissent. But by abstaining from doing so, we, as citizens of this country, are being robbed of a richer jurisprudence. We are being robbed of the ability to witness that the courts can take criticism from within their own ranks.
The court that is conducive to a dissenting opinion is a strong court. As David Cole, writing for The Washington Post, said: “The practice of dissent is… a sign of strength. The [Supreme Court of the United States] preferred unanimous opinions in its early days because its authority was not yet established, and it sought to present a united front. Only as the court gained confidence (and as the country gained confidence in the court) did the number of dissents grow.”
I was reminded of the importance of dissent recently when I read the excellent one penned by Supreme Court Justice Mr Justice Maqbool Baqar in a case concerning the devolution of three hospitals from the federal government to the province of Sindh. In a dissent that raises concerns regarding the majority’s decision to invalidate the transfer of ownership and control of the hospitals from the federal to the provincial government, Justice Baqar speaks of the ‘spirit and soul’ of federalism in Pakistan, the purpose of the 18th Amendment, and the history of public hospitals in the country. In a convincing passage that pays homage to the historical basis underlying the Constitution, Justice Baqar writes about how public hospitals have historically always vested in the provincial governments.
Any reader of Justice Baqar’s dissent comes away with a deeper appreciation of the issue of federalism that was before the Supreme Court. Clearly, Justice Baqar understood the importance of dissent when he concluded by quoting Chief Justice Charles Evan Hughes: “While a dissenting note has no legal force, the purpose of this endeavor is to appeal to the brooding spirit of the law in the hope that what may be dissent today becomes the law tomorrow.”
Justice Baqar’s dissent is no futile exercise in prose. In fact, it is an indication by a member of the Supreme Court that attempts at the curtailment of the 18th Amendment’s promise of provincial autonomy shall find resistance from within the Supreme Court’s ranks. It also serves as a moment where a judge is directly addressing the people. With some recent subtle calls for a more centralised form of government, Justice Baqar is reminding the people not to forget the hard struggle that led to the adoption of the 18th Amendment. Constitutional provisions should not be so easily dismissed as irrelevant.
Our Supreme Court is no longer the institution it once was. It has grown into a strong and independent institution of the state. It, therefore, has no reason to shy away from encouraging more judges voicing their disagreement through dissent. Dissents, not only inform, but also help polish the views of the majority. Justice Ruth Bader Ginsburg said about the late Justice Antonin Scalia: “We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation.”
The role of the judiciary is not just to decide cases, it is also responsible for informing us about the law. We can only gain insight into the logic and rationale behind the decisions of the justices if the full spectrum of debate is made available to us. A judgment is an education as to an area of law, but true education cannot be achieved without having both sides of a debate available to us.
The concept of dissent helps in the creation of what legal historian Melvin Urofsky calls ‘constitutional dialogue’ – a healthy debate regarding matters fundamental to our Constitution. And this is important. Because we barely debate the constitution. We view it through binary lenses. Dissents can help us cast away our tunnel vision and see the nuance that it holds, benefiting not just our present but our future too.
Published in The Express Tribune, June 4th, 2019.