The evolving role of judges

We all possess a certain image of a judge. He is old, impartial, and stern. He decides only what is necessary, says only what is necessary, and on no account ever talks to the press. He is respected and revered. His words are literally and figuratively, the law, eternal, majestic. Even those judges who do not fit naturally into the traditional image tend to grow into it. The truth cannot be avoided, the judges like the old image. They cling to it. And why not? It brings comfort, the comfort of knowing one is right and, the security of knowing what to do and when to do it. And it brings the gratification of knowing that they are important and appreciated.

Though some will say that things have not changed enough, it is inarguable, I think, that things have changed. In Pakistan, now hardly a day goes by without some criticism being levied against the judiciary. Often the criticism relates to a particular judgment, but on occasion, it relates to the role of the judiciary in society more generally, or even to the role of a particular judge. When an important decision is announced by the Supreme Court or a High Court concerning a political party or the powers-that-be, the Court building overflows with journalists. Nary a newspaper could be found that did not run at least one editorial on the decision; many ran opinion pieces as well; and most ran multiple news stories. Some even printed excerpts from the reasons.

The old role of a judge as a symbol of authority, sometimes scrutable, sometimes not, whose edicts from on high must be uncritically accepted as just and fitting, has gone the way that absolutist-classist government went in the nineteenth century. The judges in modern society are not potentates. They are rather servants — servants of the people in the highest and most honourable sense of the term. The modern judges have a task, a more important task than ever before. It is precisely because of the importance of this task that the judge is expected to perform it well and efficiently, to be responsive and responsible. The changing role of judges, and in particular their greater involvement with social policy, has an important effect on the way judges work. The fact that judges rule on political questions that affect large numbers of people does not, however, mean that judges are political. There is much confusion on this point in the press. Judges are said to be acting politically because numerous judicial decisions on important social and political issues will be political in the sense that they will satisfy some political factions at the expense of others. While the outcomes of cases are inevitably political in some broad sense of the term, it is important that the process be impartial. It is inescapable that judges’ decisions will have political ramifications. But it is essential that they not be partisan.

Interestingly, judges are being asked to decide rapidly because more and more people are coming to the courts. Moreover, people are demanding justice which is not only right, but justice which is prompt and efficient. This places great pressure on the process. Finding dates for trials and appeals is becoming more difficult all over the world. There never seem to be enough judges. After a case is heard, courts sometimes find themselves ill-equipped, in terms of staff and resources, to produce the judgment in a prompt and efficient manner.

Judging is not what it used to be. Judges are more important now; judges are more criticised. And judges face more difficult tasks than they ever have faced before. Undeniably, the load of tasks faced by the modern judge is not an easy one. But it is one of critical importance. If they fail, the rule of law will fail. It is as simple as that.