Not merely an abstract idea
After forty years of serving as a judge, I still ponder and reflect as to whether our judiciary is truly independent or not.
Sixty five years back, the nation became independent and these past sixty five years it has spent in knowing as to whether the judiciary has become independent or not. Kindly tell me as to who had to remain in the doldrums throughout this age long period; the nation or the judiciary.
Two and a half year back, I was accorded a full court reference on the eve of my timely retirement from the Supreme Court of Pakistan. Allow me to repeat, at least, what the memory retains.
I had said that despite the fact that the term “independence of judiciary” is a jewel in the crown of the constitution, yet it is a misnomer. The independence, in fact and in practice, is referable not to the abstract idea but to the judges who constitute the judiciary. If judges are independent, honest, fair, God fearing and blessed with judicial approach toward the lis pending before them, the judiciary is bound to be independent. If the judges are dependent, dishonest, unfair, boss fearing and infected with a whimsical approach towards every lis that they come across, the judiciary is not independent, rather permit me to say that such like is not a judiciary at all.
Mostly, the independence of judiciary is referred to becoming independent of the dictates of the government. No doubt this is one of the requirements but not the absolute in itself. The past experience from various countries and even from Pakistan has shown that apart from the government, effective influence can be exercised by the politicians and the media. To achieve independence, judges have to defend themselves on all the fronts which, by now, has become much more difficult.
Lord Denning, a famous judge of England, when asked as to what might be the qualities of a good judge, replied tersely; “Above all, a good judge must be a thorough gentleman and if he know a bit of law, all the better.” This small sentence provides the complete context. Gentility cannot be acquired by becoming a judge. It is something inherent in your personality. It is the outcome of your background. Who you are? How your parents brought you up? What type of education you received? What type of atmosphere surrounded you when you were in the process of learning, perceiving and conceptualising? What teachings you received about religion, morality, fair play and fellow beings? Judges are necessarily influenced in the decisions they make, by their upbringing and experience. To make this assessment is the job of those who are shouldered with the responsibility of selecting the judges. You can look around everywhere and nationwide. Only a gentleman would prove to be an independent judge.
Judges shall always be expected to administer a patient hearing to the parties. It is in their interest. They shall grasp the law as well as facts. With the passage of time, they shall know who is a good and genuine lawyer and who merely wants to exploit his slogans of “Zinda Baad and Murda Baad”.
A good and patient hearing would inculcate a habit of nurturing a judicial approach. A judicial officer is not expected to approach the court with any preconceived notions. An open mind, which is very rare, a judicial unconcern, nonexistent in many people, constitute the virtues that make independent judges. Kindly look around and then judge as to who constitutes the independent judiciary and who does not. Judge not that ye be not judged. Don’t speak in the court and don’t make remarks that entail upon expression of opinion. If media reporting is correct, we know of numerous speaker judges who decide the case on the first day of hearing, without hearing. By doing so, they often make mistakes. Sometimes these mistakes are publically identified and overruled by courts of appeal, with all the powers to substitute mistakes of their own.
When a judge makes remarks in the court, relevant or irrelevant but mostly irrelevant, most of the people interested take a message and start exploiting either the judge or the situation. In high profile cases involving the government and the politicians, as the case may be, they endeavour to grind their axe to the maximum. The only person defamed, disrespected and distrusted in such scenario is judge and judge alone. After all judges of independent judiciary have no agenda of their own.
Judges are expected to do justice in accordance with law, and not by making law. For centuries, English judges deceived each other in to thinking that they really applied the law made by parliament, that their job was only to interpret law and not to make law or give law. Once Lord Denning gave a dissenting judgment on which judge Simon got really annoyed. Take a note of how he described the dissenting opinion. He said and I quote, “It was a naked usurpation of the legislative function under the thin disguise of interpretation.” The naked usurpation does not indicate independence. I am referring to the British and American judiciary—but how and why do you think that I am not referring to them?
Judges are expected not to cultivate bias and prejudices in cases they hear. These are base characteristics of human nature. High judicial status immunises men and women from childlike displays of petulance and prejudice. An independent judiciary does not have judges with bias, petulance and prejudices.
Judges are expected to have a deep sense and feeling of self-respect. Judges who have no self-respect, create numerous gods for themselves, some visible and some invisible. They share their files with parties to the litigation. Worst part of the tragedy is that when such matters surface, they do not feel insulted. A gentleman is expected to react when it comes to self-respect. Judges of independent judiciary do not act in a manner that consequents upon their own insult, unless they are bent upon achieving some target of their own. So, they ought to be strong without being rude and be polite without being weak. Do not be weak like a judge who disappointed President Roosevelt of the United States and forced him to make remarks about judge Oliver Wendel Homes of the Supreme Court. He said and I quote, “I could carve out of a banana a judge with more backbone than that of Oliver Wendel Homes”. Independent judges have genuine backbones of their own.
Judges are not expected to speak unnecessarily in court. It is not the bounden duty of a judge to make comments on every topic even if alien to his comprehension. The more detached a judicial comment is from contemporary ideas and ideals, the more extensive the consequent publicity. Some judges have achieved a considerable degree of expertise in making such statements and in displaying immunity from contemporary knowledge and concerns.
Too often judges do not own up to their need for continuing education. They frequently compound their reluctance to recognise their non-expertise with a readiness to express themselves in court on all type of subjects about which they know little or nothing, in terms derived neither from the common law nor from common sense.
It is a sine qua non to have judicial approach in every lis that comes up for adjudication and to maintain a balance between crime and punishment. A judge at Ipswich Crown Court, England, who lacked judicial approach and a sense of balance between crime and punishment, imposed fine on a rapist rather than sentencing him to prison, after finding that his teenage victim, who had innocently accepted a lift in his car, was “guilty of a great deal of contributory negligence”.
As for the important aspect of corruption among judges, the lesser said the better it is, because a corrupt judge is not a judge at all, much less, independent. Better it is to be a broker.
In a humble expression, I conclude my submissions as to what type of a judge one ought to be. Such judges make an independent judiciary. You can conclude accordingly. In the last six years, what I have been able to conclude is that only bars have become independent.
I, for one, have serious reservations about the manner and mode of selection of judges in the superior judiciary. With the passage of time it will make judges subservient to not one but many governmental as well as political entities. The earlier mode of selection, very well known to all of you, was more honourable as well as independent. The misuse of the earlier mode by some of the people concerned has probably forced the legislature to adopt the new course. Someday, it is seriously going to hamper the independence of judiciary.
In the given context, amongst the civil judges, the district and session judges, the members of the bar who are aspiring to become judges and, above all, my brothers in the superior judiciary, if only one soul agrees to what I have submitted, I believe the purpose of making such submissions, has been well served.
The writer is a former justice of the Supreme Court of Pakistan