Guarding the custodians

Judiciary not the only guardian of rule of law, must be guarded from its excess by parliamentary and public opinion.

Sir Mathew Hale, Chief Justice of the Kings Bench, England from 1671 to 1676, realised early in his career, that being a custodian of the law was serious business. To aid himself in the performance of his duties, he drafted eighteen resolutions to guide his thoughts, actions and demeanour as a judge and followed these religiously throughout his career. It is perhaps no surprise, therefore, that more than three centuries later, Hale continues to be remembered for his intellect, integrity and ability to apply the law ruthlessly.

Hale’s resolutions provide excellent guidance for persons interested in regulating judicial conduct. In fact, in keeping with his tradition, our very own Supreme Judicial Council framed a Code of Conduct for judges of the superior courts of Pakistan originally under the 1962 Constitution and updated it in 2009. The unstated purpose of this Code appears to be twofold: to provide guidance to judges for the proper discharge of their duties and to inform lawyers, litigants and members of the public of the standards of behaviour to expect from judges. The only question that arises is, whether this Code is adequate for modern times?

The preamble of the Code, after recognising the supremacy of God and the Constitution, affirms the commitment of the judiciary to interpret and apply the Constitution and the law, “for the maintenance of the Rule of Law over the whole range of human activities within the nation.” Whilst, in recognising and endorsing this ideal, the judiciary that it belongs to the most exalted tradition of jurists, it does not provide concrete steps that it may take to achieve this ideal, especially in the face of an executive used to unbridled power and unwilling to easily relinquish its domain.

Even more importantly, by couching its ideal conduct in exalted and nearly archaic language, the judiciary appears to have failed to appreciate the evolution in the understanding of its nature and authority and its consequent place and role in modern society. It appears still to be thinking of the theory posited by the French social commentator and political thinker Montesquieu, that “judiciary is the point of most direct confrontation between the government, law and the individual and it could therefore serve as the best barrier against lawless governmental actions”.

In subscribing to Montesquieu’s theory, the judiciary appears, however, to have overlooked an important caveat: in his model, cases were decided by judges and juries who were derived from the people, sat only for a temporary duration and rendered judgments strictly, and only, in accordance with the law. His theory, therefore, does not hold for a judiciary such as ours which is drawn primarily from the socio-economic elite, where lay juries play no role in judicial decision-making and most importantly, where the judiciary is becoming increasingly prone to exercising and expanding its discretionary powers to deliver, what it perceives to be, justice.

In these circumstances there is a distinct danger that in its zealousness to deliver its notion of justice, the judiciary may veer so far off the beaten track of law, that it finds itself constrained either to change the rules of the game in the course of litigation or simply to prioritise cases in such a manner that it not only shortchanges the litigant but also undermines the fundamental principles of legal certainty, predictability and transparency that form the cornerstone of the very rule of law that it purports to uphold.

To guard against such an eventuality, it is important for the judiciary itself to recognise not only its elite social status but also its humanity which forces it, despite all aspirations to impartiality, to allow its nature and background to influence the business of judging. And having acknowledged this, it is important for it first to accept that in these circumstances it is not, and indeed cannot be, the only guardian of the rule of law and must in fact be guarded from its own excess by parliamentary and informed public opinion and then to devise for itself an appropriate charter so that it remains worthy of the respect that it demands and indeed deserves.

Published in The Express Tribune, February 8^th, 2013.