The quality of justice

Absence of topic exploring bench & bar relationship suggests judiciary either takes it for granted or ignores it.

I spent most of last weekend on my feet, working hard in my limited capacity, for the success of the International Judicial Conference held at Islamabad. Of course, I am happy to report that it was indeed a success — at least, by the standards with which we in Pakistan measure success: there was a smattering of distinguished foreign guests (justifying the ambitious title of the Conference), local participation was extensive and multidisciplinary and, most importantly, the food was good. Despite all this, however, even as I basked in the adrenalin rush that inevitably follows such an event, a voice inside me asked, rather unhelpfully: Has the Conference made any difference to the quality of justice in our country? A valid question, no doubt, but one to which there is no easy answer.

In attempting to unravel this issue, we may accept as a starting point, that justice means different things to different people: whilst for some, justice may lie in exacting the proverbial pound of flesh, for others it may be imbued with the quality of mercy. However, this difference of opinion is only properly permissible for a layman and not for members of the legal community who, whether they are judges or lawyers, understand and appreciate — to borrow a phrase from Oliver Wendell Holmes Junior, Associate Justice of the Supreme Court of the United States from 1902 to 1932 — that our courts “are courts of law and not courts of justice” and the only justice they can render, lies not as much in attaining a preferred outcome, but rather in following a transparent, fair and predictable process.

Justice then, in our court-based, adversarial legal system, may only be achieved when each party to a case, irrespective of whether it is weak or strong, rich or poor, educated or not, is allowed a reasonable opportunity to present its case, preferably through a person trained in legal nuances and furthermore, is assured that his case will be decided according to the evidence and the law, rather than the preferences of the judge. And to achieve justice of this quality, it is imperative that both lawyers and judges are properly educated, not only in the law, but also in the skills of their craft, and act strictly within the limits of their respective spheres; that the judiciary is independent and free from influence and lawyers perform their duties to the highest ethical standards and finally, and perhaps most importantly, that there is trust between the two.

If this then is the definition of justice, one may not be entirely wrong in arriving at the conclusion that the Conference dealt with justice only incidentally, if at all. The themes that had interested the Conference organisers were outward looking. They ranged from the role of judiciary in promoting a culture of tolerance to its role in ensuring good governance, and encompassed issues as diverse as terrorism and money laundering to transnational parental child abduction. The stark absence of a topic which would explore the relationship between the bench and bar, especially as it has evolved in the aftermath of the 2007 lawyers’ movement, suggested that the judiciary, either took the existence of this relationship for granted, or that it deliberately chose to ignore it even in the wake of reports of increasing mistrust, indeed of instances of violence, between the two.

At this stage in my soliloquy, the voice in my head makes itself heard again: if the Conference did not improve the quality of justice, are we justified in claiming that it was a success? This time, however, I know the answer: the Conference was not a success because of what was discussed in its formal sessions but because it was held at all despite the evident tension between the judiciary and the government; because the state machinery contributed to its smooth progress; because it was attended by lawyers from even the most far-flung areas and because it provided lawyers and judges an opportunity to openly engage on the sidelines and without reserve. And it is in this that there is real hope for independence of the judiciary, for rule of law, and ultimately for justice.

Published in The Express Tribune, April 26^th, 2012.