Judicial Restraints

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I have expressed my views about the Pakistan Supreme Court and its need to maintain judicial self restraint in articles published in this newspaper and elsewhere. However, in view of the turmoil currently prevailing in Pakistan, a clear elaborate enunciation of the philosophy of judicial restraint is called for. In a recent statement, the Chief Justice has said that it is the Constitution, not Parliament, which is supreme in the country. There is no controversy about this legal position, and indeed that is the settled law since the historical decision of the US Supreme Court in Marbury vs. Madison (1803). The grave problem, however, which courts are often faced with is this: on the one hand, there is no doubt that the Constitution is the supreme law of the land and prevails over statutes and executive decisions, and it is for the Courts to interpret the Constitution. On the other hand, in the garb of interpretation, the Court must not seek an unnecessary confrontation with the legislature, particularly since the legislature consists of representatives democratically elected by the people. The solution to the problem was provided in the classical essay written in 1893 (and published in the Harvard Law Review the same year) by James Bradley Thayer, then professor of law of Harvard University, entitled “The Origin and Scope of the American Doctrine of Constitutional Law”. This essay elaborately discusses the doctrine of judicial restraint and explains why courts should follow it. Justice Oliver Wendell Holmes, Louis Brandeis and Felix Frankfurter of the US Supreme Court were followers of Professor Thayer’s philosophy of judicial restraint. Justice Frankfurter referred to Thayer as “the great master of Constitutional Law” and in a lecture at Harvard Law School said: “If I were to name one piece of writing on American Constitutional Law, I would pick Thayer’s once famous essay, because it is a great guide for Judges, and therefore the great guide for understanding by...
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