The Most Frequent Visitor in Every Courtroom

Ask most people what Pakistan's courts spend their days on and the answer comes back as a list of private quarrels: a landlord and a tenant, two brothers and a plot, a buyer and a seller who fell out. Those cases are real and there are a great many of them. But read the titles of the judgments the superior courts actually write, and a different picture comes through. One party keeps returning, case after case, court after court. It is the state.

What the titles show

The case law database holds the full written judgments of the Supreme Court, the five High Courts, the Federal Shariat Court and the Federal Constitutional Court. Take the constitutional petitions among them and look at who is named on the other side. The names that recur most are not companies or families. They are the Federation of Pakistan, the provincial governments, the police, the Election Commission and the accountability bureau, in roughly that company, and the pattern holds court by court.

Constitutional petitions are the largest single body of work in the collection. Add the criminal side, where the State brings the prosecution in almost every case, and the conclusion is hard to avoid. Most of what the superior courts write, they write in a matter to which the state is a party.

Why it is so

None of this is a sign that something has gone wrong. It is what a constitutional court system is built to do.

A modern state makes an enormous number of decisions about people's lives. It appoints and transfers, promotes and retires, taxes and refunds, licenses and cancels, acquires land and pays for it, registers voters and counts their votes, arrests and prosecutes. Each of those decisions is made by an official, under a statute, on a file. And each one, sooner or later, reaches somebody who thinks it was wrong.

The constitutional jurisdiction of the superior courts exists for exactly that moment. It is the place where a citizen can make the state explain itself. A state that acts at scale will be asked to explain itself at scale, and the titles of the judgments are the record of it being asked.

The traffic also runs the other way. Departments appeal decisions they lose, defend orders they made, and bring their own cases, so the state appears as petitioner and appellant as well as respondent. It is the one litigant that is, in some capacity, in front of every bench on every working day.

Not only Pakistan

This is not peculiar to Pakistan. As far back as 1974, the Supreme Court of India described the state as the largest litigant in that country, and the observation has been repeated there by courts and commissions ever since. The same pattern shows up wherever courts are given the power to review what governments do. The more a state does, the more of its work ends up in a courtroom.

What it means for the record

There is a practical consequence, and it is not a complaint. A large part of Pakistan's case law is, in effect, a running account of how public power has been exercised and checked: which decisions were upheld, which were struck down, and the reasons given each time. For anyone reading it, that makes the case law more than a set of private outcomes. It is one of the most detailed public records of how the state actually behaves, written by the institution charged with keeping it within the law.

It also means the most frequent visitor in every courtroom is the one with the most to gain from that record being clear, complete and easy to read. Every department that makes decisions about people's lives will one day have to explain one of them to a judge. The better the record of past explanations, the fewer of them need to be repeated.

For how the database is built and why it keeps only full written judgments, see Decisions, Decisions: Our Case Law Database, or Why We Only Keep Full Written Judgments.