After 40 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 it has spent
all these years trying to discover whether the judiciary is independent
or not. I wonder who had to remain in the doldrums throughout this
period, the nation or the judiciary.
Two-and-a-half-years back, I was accorded a full court reference on
the eve of my retirement from the Supreme Court of Pakistan. Allow me to
repeat, at least, what 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 but to the judges who
constitute the judiciary. If judges are independent, honest, fair,
God-fearing and blessed with a judicious approach toward the
lis (lawsuit)
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 it is then not a judiciary at all.
Mostly, the independence of the judiciary refers to becoming independent of the dictates of the government.
There is no doubt that this is one of the requirements of being
independent but it is not the absolute in itself. Experience from
various countries and even from Pakistan has shown that apart from the
government, influence can also be exercised by politicians and the
media. To achieve independence, judges have to defend themselves on all
the fronts, which has become much more difficult now.
Lord Denning, a famous English judge, 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 knows a bit of law, all the
better.” This sentence provides the complete context. Gentility cannot
be acquired by becoming a judge. It is something inherent in your
personality and also comes from your background. Who you are; how your
parents brought you up; what type of education did you receive; what
type of environment surrounded you when you were in the process of
learning, perceiving and conceptualizing; what teachings did you receive
about religion, morality, fair play and your fellow human beings?
Judges are influenced in the decisions they make by their upbringing and
experience. To assess all this is the responsibility of those whose job
it is to select judges. 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 the 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
and a judicial unconcern, nonexistent in many people, constitute the
virtues that make independent judges. Judge not that ye be not judged.
Don’t speak in the court and don’t make remarks that entail expression
of opinion. If media reports are correct, we know of numerous speaker
judges who decide the case on the first day of hearing without actually
hearing it. By doing so, they often make mistakes. Sometimes these
mistakes are publicly identified and overruled by the courts of appeal,
with all the powers to substitute mistakes of their own.
When a judge makes remarks in court, relevant or irrelevant but
mostly irrelevant, the interested parties can start exploiting either
the judge or the situation. In high profile cases involving the
government and politicians, as the case may be, they endeavour to grind
their axe to the maximum. The only person defamed, disrespected and
distrusted in such a scenario is the judge alone. After all, judges of
an independent judiciary have no agenda of their own.
Judges are expected to do justice in accordance with the law and not
by making the law. For centuries, English judges deceived each other
into thinking that they really applied the law made by parliament, that
their job was only to interpret law and not to make it. Once Lord
Denning gave a dissenting judgment on which Judge Simon got really
annoyed. Take note of how he described the dissenting opinion: “It was a
naked usurpation of the legislative function under the thin disguise of
interpretation.” Naked usurpation does not indicate independence.
Judges are expected not to cultivate biases and prejudices in the
cases they hear. These are the base characteristics of human nature.
High judicial status immunises men and women from childish displays of
petulance and prejudice. An independent judiciary does not have judges
with bias, petulance and prejudice.
Judges are expected to have deep sense and a 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. The worst part of the tragedy is that when such matters
surface, they do not feel insulted. Judges of an independent judiciary
do not act in a manner that could result in their own insult, unless
they are bent upon achieving some aim of their own. So, they ought to be
strong without being rude and polite without being weak. Do not be weak
like the judge who disappointed President Theodore Roosevelt of the US
and forced him to make remarks about Justice Oliver Wendell Holmes of
the Supreme Court. He said: “I could carve out of a banana a judge with
more backbone than that of Oliver Wendell Holmes.” 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 an 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
lack of expertise with a readiness to express themselves in court on all
types of subjects about which they know little or nothing, in terms
derived neither from 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 the Ipswich Crown Court of England, who
lacked judicial approach and a sense of balance between crime and
punishment, imposed a 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, because a corrupt judge is not a judge at all, much
less, independent.
In the last six years, what I have been able to conclude is that only
the 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 was more honourable and independent. The
misuse of the earlier mode by some of the people concerned has probably
forced the legislature to adopt the new course. One day, this is
seriously going to hamper the independence of the judiciary.
In the given context, amongst the civil, district and session judges
and the members of the bar who are aspiring to become judges and, above
all, my brothers in the superior judiciary, if even one soul agrees to
what I have submitted, I believe the purpose of making such submissions
has been well-served.