Equitable decisions.

'Two things awe me most, the starry sky above me and the moral law within me' - Immanuel Kant

MORALITY and the law have never been more closely linked than when it comes to the question of whether the ends justify the means. This is especially true when analysing the Pakistani judiciary's decision-making fundamentals.

Typically, in making any decision, a judge grapples with not only the legal aspects of the matter, but also with ensuring that legal interpretations yield equitable results. For certain judges, an equitable end is imperative. Although processes are useful tools to reach such a conclusion, the judge might view these as possible impediments to substantive justice, and as such, these are used to justify a desirable end as opposed to allowing them to determine the outcome themselves.

For others, the process is of overriding importance, and even if the process results in a lawful, but less than desirable result, that is the price for a non-arbitrary decision-making mechanism. In essence, the judge relies on procedure and process to insulate his or her legal reasoning from daily pressures and influences.

The struggle between these two worldviews is real and polarising. Written judgements signed over the decades showcase these varying approaches, with process-driven verdicts arguably focusing more on procedural elements of the law, and end-specific judgements concentrating on the equities of the decision itself.

What determines which approach of a judge?

The pertinent questions relate to: what determines which approach of a judge? Do all judges have a one-dimensional approach that is applied to all situations? Or do their approaches evolve and adapt to the circumstances? In answering these questions, two factors seem to be constants in determining which approach is adopted by a judge when confronted by questions of constitutionality and public interest - firstly, populist sentiment, and secondly, the power dynamics of the establishment and stakeholders vis-a-vis popular sentiment.

Regarding the former, popular sentiments of the population may figure significantly in decision-making at any particular time. This is not to say that the judiciary renders its decisions merely on the touchstone of populist rhetoric and devoid of any legal reasoning, but that such sentiments do hold sway in determining what an equitable end may be, and coincidently, may also garner greater legitimacy for the judiciary.

In relation to the latter, at no point...