Independence of judiciary

If judges are honest, fair, God-fearing & have judicious approach toward lis, judiciary is bound to be independent.

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.

Published in The Express Tribune, November 18^th, 2012.