CHARTER
OF HUMAN FREEDOM
One of the
World’s
Greatest Historic Documents
Hazrat
Ali
Hazrat
Ali, the Great Khlif of Islam and the first in the line of the imamate, apart
from his abiding contribution to spiritual thought, is known to the Arabic world
as a great jurist and man of letters. According to the historian Masudi (Murooj-uz-Zahab
Masudi Vol. II, P.33. Egypt), Hazrat Ali is credited with not less than 480
treatises, lectures and
epistles on a variety of subjects dealing with philosophy, religion, law and
politics, as collected by Zaid Ibn Wahab in the Imam’s own life time. So
highly valued are these contributions both for their contents and their
intrinsic literary worth that some of his master pieces, throughout the course
of Islamic history, have become subjects of study in centres of Muslim learning.
Indeed, his reputation seems to have travelled into Europe at the time of the
Renaissance, for, we find that Edward Powcock, (1604-1691) a professor at the
University of Oxford, published the first English translation of his
‘Sayings’ and delivered in 1639 a series of lectures on his ‘Rhetoric’.
I
have given below a translation from Arabic into English of Hazrat Ali’s famous
letter of instructions addressed as Khalif to the then Governor of Egypt Malik
Ashtar. This letter according to Fehrist-e-Tusi (p.33) was first copied in the
time of Hazrat Ali himself by Asbagh bin Nabata, and later on reproduced or
referred to in their writings by various Arab and Egyptian scholars, chief of
them being Nasr ibn Mazahim (148 A.H.) Jahiz Basari (225 A.H.) Syed Razi (404
A.H.) Ibn-i-Abil Hidaid (665 A.H.) Ibn-i-Abduh, the reformer of Egypt and Allama
Mustafa Bok Najib, the great living scholar of Egypt. The last named regards
this letter as a basic guide in Islamic administration.
THE
RICHEST TREASURE
Be
it known to you. O Malik, that I am sending you as Governor to a country which
in the past has experienced both just and unjust rule. Men will scrutinise your
actions with a searching eye, even as you used to scrutinise the actions of
those before you, and speak of you, even as you did speak of them. The fact is
that the public speak well of only those who do good. It is they who furnish the
proof of your actions. Hence the richest treasure that you may covet should be
the treasure of good deeds. Keep your desires under control and deny yourself
that which has been prohibited, for, by such abstinence alone, will you be able
to distinguish between what is good for them and what is not.
Develop
in your heart the feeling of live for your people and left it be a source of
kindliness and blessing to them. Do not behave with them like a barbarian, and
do not appropriate to yourself that which belongs to them. Remember that the
citizens of the state are of two categories. They are either your brethren in
religion or your brethren in kind. They are subject to infirmities and liable to
commit mistakes. Some indeed do commit mistakes. But forgive them even as you
would like God to forgive you. Bear in mind that you are placed over them, even
as I am placed over you. And then there is God even above who has given you the
position of a Governor in order that you may look after those under you and be
sufficient unto them. And you will be judged by what you do for them.
Do
not set yourself against God, for neither do you possess the strength to shield
yourself against His displeasure, nor can you place yourself outside the pale of
His mercy and forgiveness. Do not feel sorry over any act of forgiveness, not
rejoice over any punishment that you may mete out to any one. Do not rouse
yourself to anger, for no good will come out of it.
Do
not say: “I am your overlord and dictator, and that you must therefore, bow to
my commands”, as that will corrupt your heat, weaken your faith in religion
and create disorder in the state. Should you be elated by power or ever feel in
your mind the slightest symptoms of pride and arrogance, then look at the power
and majesty of the Divine governance of the Universe over which you have
absolutely no control. It will restore the sense of balance to your wayward
intelligence and give you a sense of calmness and affability. Beware ! Never put
yourself against the majesty and grandeur of God and never imitate his
omnipotence. For God has brought low every rebel of God and every tyrant of man.
Let
your mind respect through your actions the rights of God and the rights of man,
and likewise, persuade your companions and relations to do likewise. For,
otherwise, you will be doing injustice to yourself and injustice to humanity.
Thus both man and God will turn into your enemies. There is no respect anywhere
for one who makes an enemy of God himself. He will be regarded as one at war
with God until he feels contrition and seeks forgiveness. Nothing deprives man
of divine blessings or excites divine wrath against him more easily than
cruelty. Hence it is, that God listens to the voice of the oppressed and waylays
the oppressor.
THE
COMMON MAN
Maintain
justice in administration and impose it on your own self and seek the consent of
the people, for, the discontent of the masses underlines the contentment of the
privileged few and the discontent of the few loses itself in the contentment of
the many. Remember,
the privileged
few will
not rally
round you
in moments
of difficulty; they will try to side-track justice, they will ask for
mire than they deserve and will show no gratitude for favours done to them. They
will fell restive in the face if trials and will offer no regret for their
shortcomings. It is the common man who is strength of the State and Religion. It
is he who fights the enemy. So live in close contact with the masses and be
mindful of their welfare.
Keep
at a distance he who pries into the weaknesses of others. After all, the masses
are not free from weaknesses. It is the duty of the ruler to shield them. Do not
bring to light that which is hidden, but try to remove those weaknesses which
have been brought to light. God is watchful of everything that is hidden from
you, and He alone will deal with it. To the best of your ability conceal the
weaknesses of the public, and God will hide the weaknesses in you, which you are
anxious to keep away from their eye. Unloose the tangle of mutual hatred between
the public and the administration and remove all those causes which may give
rise to strained relations between them. Protect yourself from every such act as
may not be quite correct for you. Do not be quick to confirm the teller of
tales, for, the tale-teller is a deceitful person appearing in the garb of the
friend.
Never take counsel of a miser, for, he will impair your magnanimity and
make you timid. Do not take counsel of a coward also, for , he will cheat you of
your resolves. Do not take counsel of he who is greedy either: for he will
instil greed in you and turn you into a tyrant. Miserliness, cowardice and greed
deprive man of his trust in God.
The
worst of counsellors is he who has served as a counsellor to unjust rulers and
shared their crimes. So, never let men who have been companions or shared their
crimes. Be your counsellors. You can get better men than these, men gifted with
intelligence and foresight, but unpolluted by sin, men who have never aided a
tyrant in his tyranny or a criminal in his crime. Such men will never be a
burden to you. On the other hand, they will be a source to help and strength to
you at all times. They will be friends to you and strangers to your enemies.
Choose such men alone for companionship both in privacy and in public. Even
among these, show preference to those who have a habitual regard for truth,
however, trying to you at times their truth may prove to be, and who offer you
no encouragement in the display of tendencies which God does not like his
friends to develop.
Keep
close to you the upright and the God-fearing, and make clear to them that they
are never to flatter you and never to give you credit for any good that you may
not have done: for the tolerance of flattery and unhealthy praise stimulates
pride in man and makes him arrogant.
Do
not treat the good and the bad alike. That will deter the good from doing good,
and encourage the bad in their bad pursuits. Recompense every one according to
their deserts. Remember that mutual trust and good will between the ruler and
the ruled arte bred only through benevolence, justice and service. So cultivate
good will amongst the people; for their good will alone will save you from
troubles. Your benevolence to them will be repaid by their trust in you, and
your ill treatment by their ill will.
Do
not disregard the noble traditions set by our forbears which have promoted
harmony and progress among the people; and do not initiate anything which might
minimise their usefulness. The men who established those noble traditions have
had their reward; but responsibility will be yours if they are disturbed. Try
always to learn something from the experience of the learned and the wise, and
frequently consult them in state matters so that you may maintain the peace and
good will which your predecessors established in the land.
THE
DIFFERENT CLASSES OF PEOPLE
Remember
that the people are composed of different classes. The progress of one is
dependent on the progress of every other; and none can afford to be independent
of the other. We have the army formed of the soldiers of the God, we have our
civil officers and their establishments, our judiciary, our revenue collectors
and our public relations officers. The general public itself consists of Muslims
and Zimmis and among them of merchants and craftsmen, the unemployed and the
indigent. God has prescribed for them their several rights, duties and
obligations. They are all defined and preserved in the Book of God and in the
traditions of his prophet.
The
army, by the grace of God, is like a fortress to the people and lends dignity to
the state. It upholds the prestige of the Faith and maintains the peace of the
country. Without it the state cannot stand. In its turn, it cannot stand without
the support of the state. Our soldiers have proved strong before the enemy
because of the privilege God has given them to fight of Him but they have their
material needs and have therefore to depend upon the income provided for them
from the state revenue. The military and the civil population who pay revenue,
both need the cooperation of others – the judiciary, civil offices and their
establishment. The Qazi administers civil and criminal law; the civil officers
collect revenue and attend to civil administration with the assistance of their
establishment. And then there
are the tradesmen and the merchants who add to the revenue of the state. It is
they who run the markets and are in a better position than others to discharge
social obligations. And then there is the class of the poor and the needy, whose
maintenance is an obligation on the other classes. God has given appropriate
opportunity of service to one and all. Then
there ate the rights of all these classes over the administration which the
administrator has to meet with an eye to the good of the entire population, a
duty which he cannot fulfil properly unless he takes a personal interest in its
execution and seeks help from God. Indeed, it is obligatory on him to impose
this duty on himself, and to bear with patience the inconveniences and
difficulties incidental to this task.
THE
ARMY
Be
particularly mindful of the welfare of those in the army who in your opinion,
are staunchly faithful to their God and prophet and loyal to their chief, and
who in their hour of passion can restrain themselves and listen coolly to
sensible remonstrance, and who can succour the weak and smite the strong, who
will not be thrown into violent temper by violent provocation and who will not
falter at any stage.
Keep
yourself in close contact with families of established reputation, integrity and
a glorious past, and draw to yourself men brave and upright in character,
generous and benevolent in disposition: for such are the salt of society.
Care
for them with the tenderness with which you care for your children, and do not
talk before them of any good that you might have done to them, nor disregard any
expression of affection which they show in return: for such conduct inspires
loyalty, devotion and goodwill. Attend to every little of their wants not
resting content with some general help that you may have given to them, for
sometimes timely attention to a little want of theirs brings them immense
relief. Surely these people will not forget you in your own hour of need.
It
behoves you to select for your Commander-in-chief one who imposes on himself as
a duty the task of rendering help to his men, and who can excel every other
officer in kindness who has to attend to the needs of the men under him, and
look after their families when they are away from their homes; so much so, that
the entire army should feel united in their joys and in their sorrows. The unity
of purpose will give them added strength against the enemy. Continue to maintain
a kindly attitude towards them so that they might feel ever attached to you. The
fact is that the real happiness of the administration lies in establishing
justice in the state and maintaining affectionate relations with the people.
Their sincerity of feelings is expressed in the love and regard they show to
you, on which alone depends the safely of the administrators.
Your
advice to the army will be of o avail, unless and until you show affection to
both men and officers, in order that they might not regard the Government as an
oppressive burden or contribute to its downfall.
Continue
to satisfy their needs and praise them over and over again for such services as
they have rendered. Such an attitude, God willing will inspire the brave to
braver actions and induce the timid to deeds of bravery.
Try
to enter into the feelings of others and do not foist the mistakes of one upon
another and do not begrudge dispensing appropriate rewards. See to it that you
do not show favours to one who has done nothing but merely counts on his family
position; and do not withhold proper rewards from one who has done great deeds
simply because he holds a low position in life.
Turn
to God and to His Prophet for guidance whenever you feel uncertain as to what
you have to do. There is the commandment of God delivered to those people whim
He wishes to guide aright: “O people of Faith! Obey God and obey God and obey
His Prophet and those from among you who hold authority over you. And refer to
God and His Prophet whenever there is a difference of opinion among you”. To
turn to God is in reality to consult the Book of God; and to turn to the Prophet
is to follow his universally accepted traditions.
CHIEF JUDGE
Select
for your chief judge one from the people who is by far the best among them –
one who is not obsessed with domestic worries, one who cannot be intimidated,
one who cannot be intimidated, one who does not err too often, one who does not
turn back from a right path once he finds it, one who is not self-centred or
avaricious, one who will not decide before knowing full facts, one who will
weigh with care every attendant doubt, and pronounce a clear verdict after
taking everything into full consideration, one who will not grow restive with
the arguments of advocates and who will examine with patience every new
disclosure of fact and who will be strictly impartial in his decision, one whom
flattery cannot mislead or one who does not exalt himself over his position. But
it is not easy to find such men.
Once you have selected the right man for the office, pay him handsomely enough, so that he may live in comfort and in keeping with his position, enough to keep him above temptations. Give him a position in your court so high that none can even dream of coveting it and so high that neither back biting nor intrigue can touch him.
SUBORDINATE JUDICIARY
Beware! The utmost carefulness is to be exercised in their selection: for it is this high office which adventurous self-seekers aspire to secure and exploit in their selfish interests. After the selection of your chief judge, give careful consideration to the selection of other officers. Confirm them in their appointments after approved apprenticeship and probation. Never select men for responsible posts either out of any regard for personal connections or under any other influence, for, that might lead to injustice and corruption.
From
these, select for the higher posts men of experience, men firm in faith and
belonging to good families. Such men will not fall an easy prey to temptations
and will discharge their duties with an eye to the abiding good of others.
Increase their salaries to give them a contented life. A contented living is a
help to self-purification. They will not feel the urge to tax the earnings of
their subordinates for their own upkeep. They will then have no excuse either to
go against your instructions or misappropriate state funds. Keep loyal and
upright men to watch over them without their knowledge. Perchance they may
develop true honesty and true concern for the public welfare. But whenever one
of them is accused of dishonesty, and the guilt is confirmed by the report of
your secret service, then regard this as sufficient to convict him. Let the
punishment be corporal and let him be dealt within public at an appointed place
of degradation.
REVENUE ADMINISTRATION
Great care is to be exercised in revenue administration, to ensure the prosperity of those who pay the revenue to the state: for on their prosperity depends the prosperity of others, particularly the prosperity of the masses. Indeed, the state exits on its revenue. You should regard the proper upkeep of the land in cultivation as of greater importance than the collection of revenue, for revenue, for revenue cannot be derived except by making the land productive. He who demands revenue without helping the cultivator to improve his land, inflicts unmerited hardship on the cultivator and ruins the State. The rule of such a person does not last long. If the cultivators ask for reduction of their land cess for having suffered from epidemics or drought or excess of rains or the barrenness of the soil or floods damaging to their crops, then reduce the cess accordingly, so that their condition might improve. Do not mid the loss of revenue on that account for that will return to you one day manifold in the hour of greater prosperity of the land and enable you to improve the condition of your towns and to raise the prestige of your state. You will be the object of universal praise. The people will believe in your sense of justice. The confidence which they will place in your in consequence will prove your strength, as they will be found ready to share your burdens.
You may settle on the land any number of people, but discontent will overtake them if the land is not improved. The cause of the cultivator’s ruin is the rulers who are bent feverishly on accumulating wealth at all costs, out of the fear that their rule might not last long. Such are the people who don not learn from examples or precedents.
CLERICAL ESTABLISHMENT
Keep an eye on your establishment and your scribes; and select the best among them for your confidential correspondence, such as possess high character and deserve your full confidence, men who will not exploit their privileged position to go against you and who will not grow neglectful of their duties and who in the drafting of treaties will not succumb to external temptation and harm our interests, or fail to render you proper assistance and to save you from trouble, and who in carrying out their duties can realise their serous responsibilities, for he who does not realise his own responsibilities can hardly comprehend the responsibilities of others. Do not select men for such work merely on the strength of your first impressions of their affection or good faith; for as a matter of fact, the pretensions of a good many, who are rally devoid of honesty and good breeding, may cheat even the intelligence of rulers. Selection should be made after due probation – probation which should be the test of righteousness. In making direct appointments from the people, see to it that those selected possess influence with the people and who enjoy the reputation of being honest; for such selection is agreeable both to God and Ruler. For every department of administration let there be a head to whom no trying task might cause worry and no pressure of work annoy.
And remember that every weakness of anyone among your establishment and scribes, which you may overlook, will be written down against you in your scroll of deeds.
TRADE AND INDUSTRY
Adopt useful schemes placed before you for those engaged in trade and industry and help them with wise counsels. Some of them live in towns, and some move from place to place with their wares and tools and earn their living by manual labour. Trade and industry are sources of profit to the State. While the general public is not inclined to bear the strain, those engaged in these professions take the trouble to collect commodities from far and near, from land and from across the sea, and from mountains and forests and naturally derive benefits.
It is this class of peace living people from who no disturbance need be feared. They live peace and order; indeed they are incapable of creating disorder. Visit every part of the country and establish personal contact with this class, and enquire into their condition. But bear in mind that a good many of them are intensely greedy and are inured to bad dealings. They hoard grain and try to sell it at a high price; and this is most harmful to the public. It is a blot on the name of a ruler not to fight this evil. Prevent them from hoarding; for the Prophet of God – Peace Be on Him – had prohibited it. And see to it that trade is carried on with the utmost ease, that the scales are evenly held and that prices are so fixed that neither the seller nor the buyer is put to a loss. And if in spite of your warning, should and one go against your commands and commit the crime of hoarding, then deal with him appropriately with severe punishment.
THE POOR
Beware! Fear God when dealing with the problem of the poor who have no patrons, who are forlorn, indigent and helpless and are greatly torn in mind – victims to the vicissitudes of time. Among them there are some who do not question their lot in life and who notwithstanding their misery, do not go about abegging. For God’s sake, safeguard their rights; for on you rests the responsibility of their protection. Assign for their greater comfort a portion of the state exchequer (baitul-mal), wherever they may be, whether close at hand or far wary from you. The rights of all should be equal in your eye. Do not let any preoccupations dismiss them from your mind; for no excuse whatsoever for the disregard of their rights will be acceptable to God. Do not treat their interests as of less importance than your own, and never keep them outside the purview of your important considerations, and mark the persons who look down upon them and of whose conditions they keep you in ignorance.
Select from among your officers such men as are meek and God-fearing who can keep you properly informed of the condition of the poor. Make such provision for these poor people as shall not oblige you to offer an excuse before God on the day of judgement; for it is this section of the people more than any other which deserves benevolent treatment. Seek your reward from God by giving to each of them what is due to him and enjoin on yourself as a sacred duty the task of meeting the needs of such aged among them as have no independent means of livelihood and are averse to seeking alms. And it is the discharge of this duty that usually proves very trying to rulers, but is very welcome to societies or nations who truly carry out with equanimity their covenant with God to discharge their duty to the poor.
OPEN CONFERENCES
Meet the oppressed and the lowly periodically in an open conference, and conscious of the diving presence there, have a heart-to-heart talk with them, and let none from your armed guard or civil officers or members of the police or the intelligence department be by your side, so that the representatives of the poor might state their grievances fearlessly and without reserve. For I have heard the Prophet of God saying that no nation or society will occupy a high position in which the strong do not discharge their duty to the weak. Dear with composure any strong language which they may use, and do not get annoyed if they cannot state their case lucidly, even so, God will pen for you His door of blessings and rewards. Whatever you can give to them, give it ungrudgingly, and whatever you cannot afford to give, make that clear to them with utmost sincerity.
There are certain things which call for prompt action. Accept the recommendations made by your officer for the redress of the grievances of the clerical staff. See to it that petitions or applications submitted for your consideration are brought to your notice the very day they are submitted, however much your officers might try to prevent this. Dispose of the day’s work that very day, for the coming day will bring with it its won tasks.
And then do not forget to set apart the best of your time for communion with God, although every moment of yours is for Him only, provided it is spent sincerely in the service of your people. The special time that you give to prayer in the strict religious sense is to be devoted to the performance of the prescribed daily prayers. Keep yourself engaged in these prayers both in the day and in the night, and to gain perfect communion, do not as far as possible let your prayers grow tiresome. And when you lead in congregational prayer, do not let your prayer be so lengthy as to cause discomfort to the congregation or raise in them the feeling of dislike for it or vitiate its effect: for in the congregation there may be invalids and also those who have to attend to pressing affairs of their own.
When I asked of the Prophet of God, o receiving an order to proceed to Yaman, how I should lead the people over there in prayer, he said “Perform your prayers even as the weakest among you do; and set an example of considerateness to the faithful”.
Alongside the observance of all that I have said above bear one thing in mind. Never for any length of time keep yourself aloof from the people, for to do so is to keep one self ignorant of their affairs. It develops in the ruler a wrong perspective and renders him unable to distinguish between what is important and what is not, between right and wrong, and between truth and falsehood. The ruler is after all human and he cannot form a correct view of anything which is out of sight. There is no distinctive sign attached to truth which may enable one to distinguish between the different varieties of truth and falsehood. The fact is that you must be one of two things. Either you are just or unjust. If you are just, then you will not keep yourself away from the people, but will listen to them and meet their requirements. On the other hand, if you are unjust, the people themselves will keep away from you. What virtue is there in your keeping aloof? At all events aloofness is not desirable, especially when it is your duty to attend to the needs of the people. Complaints of oppression by your officers or petitions for justice should not prove irksome to you.
Understand well that some immediately about and around you will like to exploit their position to covet what belongs to others and commit acts of injustice. Suppress such a tendency in them. Make it a rule of your conduct never to give even a small piece of land to any of your relations. That will prevent them from causing harm to the interests of others and save you from courting the disapprobation of both God and man.
Dispense justice fairly regardless of the fact whether an accused is a relation or not. If any of your relations or companions violates the law, mete out the punishment prescribed by law, however, painful it might be to you personally; for it will be all to the good of the State. If at any time people suspect that you have been unjust to them in any respect, disclose your mind to them and remove their suspicions. In this way your mind will get attuned to the sense of justice and people will begin to love you. It will also fulfil your wish that you should enjoy their confidence.
PEACE AND TREATISE
Be mindful that you do not throw away the offer of peace which your enemy may himself make. Accept it, for that will please God. Peace is a source of comfort to the army; it reduces your worries and promotes order in the State. But beware! Be on your guard when the peace is signed; for certain types of enemies propose terms of peace just to lull you into a sense of security only to attack you again when you are off your guard. So you should exercise the utmost vigilance on your part, and place no undue faith in their protestations. But if, under the peace treaty you have accepted any obligations, discharge those obligations scrupulously. It is a trust and must be faithfully upheld and whenever you have promised anything, keep it with all the strength that you can command, for whatever differences of opinion might exist on other matters, there is nothing so noble as the fulfilment of a promise. This is recognised even among the non-Muslims, for they know the dire consequences which follow from the breaking of covenants. So never make excuses in discharging your responsibilities and never break a promise, nor cheat your enemy. For, breach of promise is an act against God, and none except the positively wicked acts against God.
Indeed divine promises are a blessing spread over all mankind. The promise of God is a refuge sough after even by the most powerful on earth; for there is no risk of being cheated. So, do not make any promise form which you may afterwards offer excuses to retract; nor must you go back upon what you have confirmed nor do you break your bond, however galling it may at first prove to be. For, it is far better to wait in patience for wholesome results to follow than to break a treaty out of any apprehensions.
Beware! Abstain from shedding blood without a valid cause. There is nothing mire harmful than this. The blood that is wilfully shed shortens the life of a state. On the day of judgement it is this crime for which one will have to answer first. So, beware! Do not wish to build the strength of your state on blood; for it is this blood which ultimately wakens the state and passes it on the other hands. Before me and my God no excuse for wilful killing can be entertained.
Murder is a crime which is punishable by death. If on any account the corporal punishment dealt out by the state for any lesser crime results in the death of the guilty, let not eh prestige of the state stand in any way of the deceased’s relations claiming blood money.
Do not make haste to do a thing before its time, nor put it off when the right moment arrives. Do not insist on doing a wring thing, not show slackness in rectifying a wring thing. Perform everything in its proper time, and let everything occupy its proper place. When the people as a whole agree upon a thing, do not impose your own view on them and do not neglect to discharge the responsibility that rests on your in consequence. For, the eyes of the people will be on you and you are answerable for whatever you do to them. The slightest dereliction of duty will bring its own retribution. Keep your anger under control and keep your hands and tongue in check. Whenever you fall into anger, try to restrain yourself or else you will simply increase your worries.
It is imperative on you to study carefully the principles which have inspired just and good rulers who have gone before you. Give close though to the example of our Prophet (Peace Be Upon Him), his traditions, and the commandments of Book of God and whatever you might have assimilated from my own way of dealing with things. Endeavour to the best of your ability to carry out the instructions which I have given you here and which you have solemnly undertaken to follow. By means of this order, I enjoin on you not to succumb to the promptings of your own heart or to turn away from the discharge of the duties entrusted to you.
I seek the refuge of the might of the Almighty and of His limitless sphere of blessings, and invite you to pray with me that He may give us together the grace willingly to surrender our will to His will, and to enable us to acquit ourselves before Him and His creation; so that mankind might cherish our memory and our work survive. I seek of God the culmination of His blessings and pray that He may grant you and me His grace and the honour of martyrdom in His cause. Verily, we have to return to him. I invoke his blessings on the Prophet of God and his pure progeny.
Conduct of a Judge
Mr. Justice (R) Shafiur Rahman
Officially, as a Judicial Officer, under the existing law you have tow capacities, of a Civil Servant and that of a Judicial Officer. As a Civil Servant you are governed by the same generality of the conduct rules as govern the other civil servants. No formalized rules of conduct of a judicial officer have so far been framed for you at the National or Federal level. What is surprising is that no need has been felt for framing it. In the matter of disciplinary control also you fare with the other civil servants the same protections, the appointing and dismissing authority being government and the appellate Authority being the Service Tribunal. In 1987, when I was performing the duties of Wafaqi Mohtasib I had to call for the Confidential Reports of a number of Grade 19 officers of the judiciary for selection. My colleagues in the Wafaqi Mohtasib office doing the preliminary selection were surprised and shocked at the fact that all the Confidential Reports were average, non outstanding, or even above average, and it was almost impossible for them to pock and choose. They expressed their extreme disappointment to me. I was then reminded of what had happened twenty eight years earlier. As Registrar of the High Court of West Pakistan I was noting down the Annual Confidential Remarks decided upon by the Judges of the Administration Committee of the High Court. It was average in most cases. Probably, unwittingly I showed my discomfiture whereupon the Chief Justice turned to me to say that it is customary to record at the most average till such time as the Officer is not proposed to be recommended in the next twelve months for elevation to the High Court, and in that case he is given above average. What a rigid and absolute rule. How can anyone, not initiated and unaccustomed, understand the full implication of an average remark particularly so when with the marking system, outstanding and ten over ten is the prevailing standard on the executive side.
In this context too therefore the insularity and independence of judiciary, in all its tiers demands that there should be a separate code of conduct for judicial officers and like the superior judiciary they should be judged by their own peers, the government and the Service Tribunal playing no decisive role in it.
There are four distinguishing features of judicial office held by you. First you function in full vies of the public vitally concerned and directly affected by tour performance. Secondly, you express yourself by a reasoned judgment, which can and does adequately reflect tour capacity to ascertain facts, to analyze them and to apply law to them. Thirdly, tour output is substantially quantified leaving little scope for subjective assessment. Fourthly, the work of a judge is essentially personal to himself.
Personally, I consider that the greatest protection that a judge enjoys is on account of his functioning in full public view. His punctuality, his politeness, his control over his own temper, and that of other, his patience, his capacity for sustained work, all demand from him the bast and inevitably leave a lasting impression, notwithstanding the fact that fifty percent of the litigants and the lawyers those who do not succeed, have reason to feel dissatisfied, The Bar as a body is intelligently sensitive to the performance of a judge and its reactions and responses are usually closer to the truth. For sustained functioning in public, one has to strain himself to the utmost. It also affords an invaluable opportunity of self-improvement and of observing the results of such improvement in day to day working. It is on account of this aspect of the judicial duties- of functioning in public- that the maxim has come into existence that justice should not only be done but it should manifestly appear to have been done.
The duties of a Judicial Officer are personal to himself. In other capacities one may delegate functions and duties; one may get the duties discharged by others, taking the full responsibility for it but not so in judicial office. Unless suffering from a disability, and so certified, a judicial officer cannot leave even the recording of deposition of witnesses to Court officials. He cannot share the responsibility with anyone else. It is true that he is quite often assisted by well paid and fully qualified lawyers but the responsibility being entirely his, he cannot shift it to anyone else.
There is yet another aspect of your official life as a Judge. Rewards, recognition and correction is slow to come; so slow at times that you may feel that it does not come at all. In any other capacity you receive a pat on the back as soon you have done your duty well. You are mentioned in the dispatches. Your feat is told to the world and retold. Also you receive correction and guidance, as soon as you commit a mistake. In the judiciary it is different because you enjoy exceptional independence in your functioning. None can praise or criticize your performance except in the hierarchy, at the appropriate stage, in a recognized and formal manner. Even when that is done language moderate and restrained is used, providing you no immediate inspiration nor it is hurtful. In this background you have to device your own method of evaluating your performance, of locating your mistakes and errors, of improving upon your performance and of deriving satisfaction and solace from duty well done. No doubt the Bar is the quickest to respond to your virtues and to your faults but you are not, and should not be, in communication with them individually as regard your personal performance because it will inevitably give rise to sycophancy, which may in turn destroy your Judicial perspective.
The Bar and the bench are said to be the two wheels of the chariot of justice. The quality of assistance rendered by the bar adds to the quality of your performance. It should be your effort therefore to encourage and assist them, consistent with your impartiality and detachment, in observing punctuality in court, in preparing and presenting their cases, in exploring and examining new areas in their attending to peripheral matters related to the administration of justice and the profession of an Advocate. An atmosphere of intellectual pursuit, seriousness of purpose and discipline should prevail inside and outside the Court premises.
Socially, you are expected to be a model of sobriety, moderation, restraint, politeness. With friends and foes, with neighbors and strangers, with the family and with the relatives you have to deal fairly and justly. If you do not do so or fail, your capacity as a judge is put in jeopardy. Your entire perspective in life gets value oriented and your success comes to be associated with judiciary’s success and your failure as Judiciary’s failure. You get institutionalized.
In the Punjab, in 1976 the then Chief Justice of the Lahore High Court prescribed a Code of Conduct for the Members of the subordinate Judiciary. I reproduce it hereunder:-
I. “No man has a right to judge another man except when the Society has entrusted him with the task of judging others and settling their disputes. The members of the superior subordinate Judiciary in our country have been chosen by our society to carry out this onerous duty.
II. For the members of the superior judiciary a Judicial Code of Conduct has been presented by the Supreme Judicial Council. For the members of the subordinate Judiciary in the Province of the Punjab I prescribe the following Code of Conduct:-
1. The Judicial power being a sacred trust, the Judicial Officer should exercise it honestly, efficiently and to the best of his capacity keeping always in mind that the is accountable not merely to his superior officers but God Almighty Himself.
2. While deciding an issue, only Judicial considerations should weigh with the Judicial Officer who in matters of discretion should be guided only by his own conscience and the rule of law and not by whims and caprices.
3. His behaviour generally should be gentlemanly and his conduct in Court particularly should be courteous and polite but at the same time firm and dignified.
4. While dealing with others he should always imagine himself in the position of the person he is dealing with him as he would like himself to be treated.
5. He should always exercise self restraint and self denial and avoid missing with members for the general public or the Bar and attending private parties and functions.
6. He should always be keen to learn and try to gain knowledge throughout his career. No one can at any stage of one’s life claim to have learnt every thing or to know everything.
7. He should never publicize his honesty of any other merit. He should leave it to others to recognize his merits.
8. He should be respectful and obedient to his superiors, helpful and sympathetic to his subordinates.
9. He should always live within his honest means.
10. He should avoid employing impolite language in writing as well as in conversation and should also try not to annoy others.
11. It is human to err. The Judicial Officer is no exception to this rule. But he should brave enough to admit his mistakes frankly and should sincerely try and avoid repeating them in future.
12. He should not incur personal obligations as far as possible.
13. He should never backbite or crib and should never stoop to flattery.
14. He should not judge himself. It is ob of his superiors to judge him. And when the superiors point out some short-coming in him, he must take it in good grace and try to remove it.
15. He should never lose his temper while presiding over the Court and should avoid entering into arguments with lawyers, parties or witnesses.
16. He should never lose his become informal while performing judicial functions.
17. In the matter of performing judicial duties and taking judicial actions, he should always maintain his independence and should never allow himself to be swayed either by those who are near and dear to him or by those in authority over him.
18. He should maintain cordial and affectionate relations with his colleagues and show due respect to his seniors.
19. One should never forget that one is accountable to God Almighty in the end.”
There were simultaneously issued a set of directions by the then Chief Justice of Lahore High Court (PLD 1976 Journal 168-C) to supplement the Code of Conduct. These are also reproduced hereunder as all of you belong to Punjab Judicial Service and are governed by these:-
“The following directions should issue to the members of the subordinate Judiciary for strict observance:-
- The Judicial Officer should have full control over the members of his staff and he should not put the litigants at their mercy. It is his duty to ensure that the orders of the Court are carried out as a matter of course without the litigants having to bribe the staff to get necessary robkars or summonses etc. issued.
- His attitude towards the staff should be such that they should have full confidence in him. He should try to achieve this by extending to them all lawful help, by giving them guidance and showing them due respect. Nevertheless he should maintain necessary distance between himself and his subordinates.
- He should never allow himself to be dominated either by his staff of by the Bar. He should always maintain his position as the Presiding Officer of the Court without, however, being rule or harsh.
- Punctuality is not merely a virtue. It is the duty of every Judicial Officer to the punctual.
- Every Judicial Officer is a Class I Officer and a presumption of correctness attaches to his official acts. He should, therefore, prove from his performance that this presumption is justified.
- A separate registrar should be maintained for all the orders and requisitions received from the superior Courts and the Presiding Officer should personally make sure that all such orders and requisitions have been complied with or replied to.
- The Judicial Officer should be fully conversant with the High Court Rules and Orders.
- He should not sign any document without having consciously read and approved it.
- Should he find it necessary to admonish a subordinate official, he should not do it in the presence of others, but as far as possible in the privacy of his retiring room.
- Subordinate officials are not private servants. The Judicial Officer should not, therefore, treat them as such and permit himself to be obliged by them.
- Should a distasteful communication be received by him criticizing him, he should consider it with detachment and try to appreciate the contents thereof objectively. He should not hasten to reply to the communication in a sate of passion.
- He should from time to time study the instructions received from the High Court.
- He should be careful about him dress. He should always be in robes while presiding over the Court and be properly dressed also otherwise.
- Some Judicial Officers try to cultivate friendship with the ministerial staff of the High Court. This is an unhealthy practice within much must be abstained.
- The Judicial Officer should make it a habit to read the law reports regularly. He should also keep reading the basic enactment like Civil Procedure Code, the Evidence Act and the Pakistan Penal Code etc. over and over again.
In the end I will commend to you all to keep an eye on the code of Conduct framed by the Supreme Judicial Council under Article 128(4) of the constitution for Judges of the Supreme Court and the High courts in Pakistan (PLD 1967 Journal 97). Remember and never forget the very first sentence of it, the opening words which mention “The prime duty of a Judge as an individual is to present before the public an image of the justice of the nation.”
If you get interested over in utilizing, channelizing and meaningfully directing the vast resources of the Bar for the betterment of judicial administration in all its comprehensives you should dwell deep into the history of American Bar.
Independence of Judiciary
Justice Asif Khosa
Judge, Lahore High Court, Lahore
By way of an opening statement I would like to observe that independence of judiciary is not an end in itself but it is only a means to the end and the end, for sure, is impartiality of judiciary. For diverse reasons that all of us can conceive an otherwise independent judiciary may still not be impartial and that is why mere achievement of independence of judiciary may not be good enough if the real objective of impartiality still remains an illusion. I may, therefore, emphasise at the outset that for any meaningful understanding of the issue it is imperative to realize and appreciate on a philosophical level that independence of judiciary is not the ultimate milestone to be crossed or the final target to be achieved but it is an ongoing effort in which different targets are to be set and achieved, different stages are to be crossed and different levels are to be attained till we achieve the ultimate objective of impartiality of judiciary. Stage one in this context is identifying the bottlenecks and removing them by suitably interpreting various constitutional and statutory instruments in order to pave the way for achieving independence of judiciary; stage two is consolidation and strengthening of independence of judiciary through bringing about and reinforcing the necessary milieu for the same; stage three is ensuring such a perception of the judiciary that the general public and the society at large feel persuaded to support its independence for their own benefit; and the fourth and the final stage of independence is that which I call the final frontier. I can understand your curiosity about this fourth stage but kindly wait for a few minutes till I come to the final frontier in the later part of this paper after some brief comments about the earlier three stages. Before framing of a Constitution for our homeland the founding fathers had resolved in the Objectives Resolution of 1949 to frame a Constitution which establishes an order wherein, amongst other ideals, “the independence of the judiciary shall be fully secured”. The said aspiration of the founding fathers now stands translated into the main body of the Constitution of Pakistan and forms a substantive part of the same. On the basis of that one sentence of the Constitution I, as a practising lawyer, had built up a whole thesis in the year 1994 and had written a detailed article titled ‘Independence of Judiciary: A Constitutional Challenge’ highlighting therein the loopholes in different provisions of the Constitution and how such loopholes were exploited by their misuse by those interested in thwarting independence of judiciary. I had humbly suggested in some detail the ways through which those loopholes could be plugged through the means of interpretation of the Constitution. That article was published in PLD 1994 Journal 101 and the same was also read by me as a paper at a seminar organized by the Supreme Court Bar Association of Pakistan at Lahore some time during the year 1994. Copies of that article had been made available by me to all the then Hon’ble Judges of the Supreme Court of Pakistan. Within a matter of less than two years of writing that article by me the Supreme Court of Pakistan decided the famous case of Al-Jehad Trust (PLD 1996 SC 324), popularly known as the Judges Case, and in that landmark judgment almost every avenue of interference with independence of judiciary was not only attended to but also a brilliant effort was made to interpret the relevant provisions of the Constitution in such a manner that threats to independence of judiciary posed by their misuse were minimised. If the above mentioned article of mine and the judgment rendered by the Supreme Court in Al-Jehad Trust case are placed side by side the similarities between the two
can strikingly be noticed. I, in all humility, would like to understand that the above mentioned effort made by me through my article on the subject had a small but a pioneering role in the end result. I would like to believe
that I had been successful in sensitising their lordships of the Supreme Court about the issue and my little effort had at least triggered a thought process which later on led to a wonderful result. That was the first stage, i.e., the cognitive stage wherein the issue was identified and understood and an intellectual effort was made to tackle the same. That stage has already been successfully crossed by us way back in the year 1996 although some quarters have some reservations about proper implementation and follow up of the Supreme Court’s decision in the case of Al-Jehad Trust. In a civilized society and particularly in a democratic society the significance and importance of independence of judiciary is generally understood and universally cherished. Stage two in the journey towards independence of judiciary is consolidation and strengthening of independence of judiciary through bringing about and reinforcing the necessary milieu for the same. It is commonly known that in order to secure and then safeguard the independence of judiciary the following factors play an important role: constitutionally entrenched courts, security of tenure for judges, impartial
appointment process, articulated judicial ethical standards, impartial discipline process, adequate and constitutionally protected salary, physical security, civil immunity for judicial functions, freedom from interference in decision making from superior judicial officers outside of the appellate process, integration of subordinate courts as full members of the judiciary, separation of the judiciary from the executive, judicial control of its own budget, judicial control of its own administration, judicial control of the curriculum and faculty of judicial education, freedom from arbitrary geographic transfers, avoidance of retrospective legislation about anything to do with the judiciary, executive support to enforce judgments even against itself, executive support to prosecute and punish attempted or actual judicial corruption, executive restraint from interference in judicial decision making process, an independent Bar, a government sensitive to public opinion, an educated public demanding an impartial judiciary and a free and informed press. In our quest for securing independence of judiciary we in Pakistan are presently passing through this second stage. We are in
the process of consolidating the gains achieved by us through the cognitive stage. We already score highly on many of the above mentioned prerequisites of this stage of consolidation of independence of judiciary but
unfortunately security of tenure and a government sensitive to public opinion happen to be two critical areas where everything achieved through the other factors stands undermined from time to time. Repeated interruptions in constitutional governance of the country with resultant foisting of unrepresentative governments which are not sensitive to public opinion and unconstitutional and unceremonious exit of members of the superior judiciary on most of such occasions go a long way in destroying or neutralizing every other success achieved towards independence of judiciary. We are, however, keeping our fingers crossed and are hopeful of a better future as the present military ruler assures us that there shall be no future military intervention in the constitutional governance of the country. We only hope that his words prove to be prophetic although we know that his wish may not be treated as a command by any future adventurer. Any intellectual breakthrough at the cognitive stage or any amount of consolidation of independence of judiciary through the factors relevant to the second stage is likely to be meaningless if an otherwise independent judiciary does not command confidence and respect of the people it is meant to serve. The independence of judiciary must enure to the benefit of the people at large so that the people at large take it upon themselves to defend such independence of judiciary whenever it comes under an assault from its predators. The third stage, thus, pertains to developing proper perceptions about the judiciary by making the fruits of its independence available to the members of the society and none except the judiciary itself is to reflect upon this aspect and to deliver. The people of a country may not be interested in planting and growing a tree and in making it strong if the tree bears no fruit for them and does not even provide them shade or shelter when needed. Now I come to the fourth stage which I call the final frontier. In my capacity as a lawyer I had written and spoken about independence of judiciary on several occasions but when I speak now my perspective and angle are slightly different. On the previous occasions I had looked at the issue from the point of view of a lawyer but this time I speak as a Judge who has already spent a good number of years on the Bench. I have seen the system from within and, thus, I know and understand a few things which an outsider may not be in a position to appreciate. In this backdrop I now intend to share with you some aspects of independence of judiciary which are generally overlooked but the said aspects are so important that without attending to them the whole superstructure of independence of judiciary remains incomplete and, if I may say so, shallow and superficial. In order to understand what I am about to say you must appreciate that, as already alluded to earlier, independence of judiciary is not an end in itself but it is only a means to the end. The end is impartiality and independence only helps in securing and maintaining judicial impartiality. It is possible that a judge may be absolutely independent but he still may be partial in many ways and, thus, his independence may not be of any avail because the end result may not be just, fair and correct. It is some of these areas and aspects, often ignored and overlooked, which I intend to talk about and highlight today. The earlier stages that I have talked about are essentially relevant to threats to independence of judiciary from outside the judiciary but the final frontier envisioned by me is the stage where independence of judiciary achieved through a successful passage of the earlier stages is to be protected from the threats originating from within the judiciary itself. Three areas appear to me to be of particular importance in this context: independence from yourself, independence from judiciary and independence from justice. Please don’t be alarmed. I would explain these aspects straightaway. It is generally appreciated that threats to independence of judiciary are from without but I believe that the real threats to independence of judiciary are from within, from within the personality of the judge himself. There are cases wherein the metal of an individual judge is tested, and tested hard, and no outside factor is available to provide him strength and fortitude. In such cases a weak judge is likely to buckle down unless he possesses an inner strength of character so as to overcome his personal fears and to demonstrate independence from his personal qualms and worries. There are also cases like those of terrorism, etc. wherein the judge’s personal safety and safety of his immediate family is an issue and a judge who is weak from within may find it hard to withstand the pressure. There may also be cases where a judge disagrees with the majority of his colleagues on a matter of principle and in such matters only a judge possessing strength of character can take a stand according to his convictions. A desire to seek further elevation in his status or even a fear of a geographic transfer to a Bench of the court may also weaken a judge’s resolve to take a principled stand on issues. All such desires, fears and apprehensions detract from a judge’s independence and, notwithstanding availability of the wherewithal talked about above, the judiciary cannot become truly independent unless the individual judges are able to shun and rise above such desires, fears or apprehensions. History is full of examples where judges with no security of tenure and lacking proper protections, amenities or salaries had been taking bold and independent decisions. It was surely their personal metal and commitment to their vocation rather than anything else that had made them truly independent. Let me add another dimension to this aspect by reiterating that independence of judiciary is all about perception of its impartiality. A judge known to be afflicted with his own personal prejudices may be independent from extraneous influences but he cannot be perceived by the public at large as an independent judge if he does not decide his cases with an independent mind. It is universally true that every man is an island and his approach towards others is conditioned by the circumstances of his own upbringing, his social and financial status before becoming a judge and the cultural traditions of his own milieu. It is, thus, but natural that every judge tends to look at the facts of a case from his own individual perceptions and this is why many a time different judges handling the same case and the same set of facts arrive at different conclusions on the facts. I, therefore, feel convinced that if the ideal of independence of judiciary is to be achieved in any meaningful manner then a system has to be devised whereby the individual judges are trained to look at and examine the facts of a case from a standpoint which is completely divorced from the judge’s own personality. I understand that in some parts of the civilized world despite a great fanfare about independence of judiciary judges are selected and appointed to the hierarchy of courts including the apex court with particular reference to their known conservative or liberal approach towards the national or moral issues. With great respect I consider such a practice to be nugatory to impartiality of judiciary and I can only sympathise with the litigant taking his case to such a judge when he knows in advance that the judge openly holds and is expected to express a view other than that which the litigant is about to canvass before him. A judge, howsoever independent he may otherwise be, is not independent enough if his impartiality is clouded by his personal views and perceptions. This is what I mean when I include independence from yourself as a part of the final frontier. The second aspect of the final frontier that I want to talk about is independence of an individual judge from the undue pressures of his peers and from some unnecessary or unwarranted controls of his institution. There is no doubt that in his capacity as a judge a person performing judicial functions is necessarily a part of his institution, i.e. the judiciary and ordinarily his functioning is to be in line with the over all policy and scheme of the institution. However, the problem comes when the institution’s independence is itself under cloud because of extraneous factors and an individual judge starts abdicating his decision making before the dictates of the institution or conversely when the institution starts excluding an individual judge from decision making in sensitive matters because that judge is not likely to tow the line of the institution. Both such factors, which may be unthinkable in the civilized world but may unfortunately be real possibilities in some other parts of the world, completely undermine the notions of independence of judiciary. Apart from that concentration of powers in the hands of the head of a judicial institution regarding constitution of Benches, allocation and distribution of cases amongst Benches, attaching of priority to different kinds of cases and geographic transfer of judges is an issue which has raised eyebrows in the past and can also resurface in the future. A possible misuse of such powers by the head of a judicial institution can effectively render the independence of an individual judge to be of no practical utility or benefit to the citizens at large. Such a threat to independence of judiciary has its origins within the judiciary itself and any degree of independence of judiciary painstakingly achieved through all the other stages mentioned above can effectively be neutralized through some machinations from within the judiciary itself. In this context I feel that independence from judiciary in the above mentioned areas may be a sine qua non for reaching the final frontier of independence of judiciary.
Sir Francis Bacon, the British Lord Chancellor of his time, started his essay Of Truth with the following words: “What is truth said the jesting Pilate and did not wait for an answer.” The same can be said about justice as well. Justice is an abstract notion and true justice can be done only if totality of the facts are known. According to the Holy Qur’an when Khizar (PBUH) killed a minor boy for no ostensible reason Moses (PBUH) found that to be unjust and he protested against such an unjust murder but subsequently Moses (PBUH) was satisfied when Khizar (PBUH) explained the will and wisdom of Almighty Allah in that regard on the basis of facts which were not known to human beings till then. Thus, even a Prophet of Almighty Allah apparently faltered in the matter of justice on account of lack of knowledge of the totality of facts. Unfortunately all that we fallible and mortal judges in this world have before us is a few papers containing half-truths and some self-serving statements of the parties and their partisan witnesses. Almighty Allah, the Maker of us all, knows our limitations and that is why at many places in the Holy Qur’an we have been ordained to decide according to the onus, quantum and standard of proof prescribed for various offences. In some cases where an allegation is leveled in the absence of the prescribed quantum and standard of proof the person leveling the allegation is required to be punished even if his allegation may in fact be true. The essence of this is that the emphasis is not upon making sure that the culprit does not go unpunished but the focus is on punishing him only if he is proved guilty in accordance with the legal requirements. It is, thus, evident that we have been ordained to administer justice only in accordance with the law and not in accordance with our own subjective appreciation or understanding of what might have happened and on the basis of our own subjective sense of justice. Even the Star Chambers and the Court of Equity in England had to be wound up because it was soon felt that equity had started varying with the size of the Chancellor’s foot and justice being administered was becoming more and more whimsical and subjective. It is in the background of such accumulated wisdom that the oath of office of a judge in our country requires him to dispense justice only in accordance with the law. Let me explain this issue through an example. We all know what a fake police encounter is. A fake police encounter is where a notorious criminal, a menace to the society, is apprehended by the police and knowing that no sufficient evidence is available against him to prove his misdeeds before a court of law the police officer decides to rid the society of that menace and kills that person by fabricating and faking a police encounter. The motives of such a police officer appear to be just to him and he feels convinced that by ridding the society of that menace he is doing a service to the society but the law considers such a killing to be nothing but a cold-blooded murder. Please allow me to say that if a judge passes a sentence of death against a notorious person or upholds such a sentence only on the basis of his own subjective sense of justice in the name of good of the society with scant regard for the law or the standard of proof then I see no difference between the above mentioned police officer and the judge. A fake judicial encounter is as bad and condemnable as a fake police encounter. I strongly believe that jurisdiction conferred by law can in no circumstances be exceeded by a judge in the name of justice because such an approach completely negates the concept of rule of law. How can a judge violating the law in the name of justice be treated more charitably than any other criminal who violates the law deliberately? Let me broach this subject from another angle. A judge is like an umpire in a game of cricket. In a tense and emotionally charged cricket match being played between India and Pakistan at Lahore Sachin Tendulkar hits the ball for a six and the ball is caught by a Pakistani fielder outside the boundary rope and the entire Pakistani team rises to its feet with an appeal to the Pakistani umpire with a question ‘How is that?’. According to the rules of the game Sachin is not out and the Pakistani umpire cannot say that although according to the rules of the game the batsman is not out but I would give him out because it is in the interest of my country. Such a decision of the umpire based upon a perverted and subjective sense of justice would surely be the last decision in that gentleman’s umpiring career. Like an umpire in a game of cricket a judge’s function in the justice system is to decide only and only in accordance with the law and not according to his own subjective sense of justice or fairness. It is the law which is to take care of justice and a judge should never try to be wiser than the law. People come to a court of law after exhausting the other avenues of justice. They want to get the legal position declared by the court and the court should not shy away from it. In a misdirected and abstract pursuit of justice the law is not to be relegated to the status of or condemned as mere technicalities. Such an attitude amounts to destroying the very basis and the very fabric of the entire legal and judicial system. The very purpose of having such so-called technicalities, i.e. the law is to establish an order in the society through known and codified standards. A judge ignoring the said code or the standards may be trying to do justice to one party according to his own subjective standards which may not necessarily be correct and sure but by doing that he is throwing the entire society into chaos by violating the agreed and settled code and standards. It must never be lost sight of by a judge that he has no mandate from the society to be an apostle, a cavalier, a reformer or a missionary and the only mandate given to him by the society is to administer justice according to the law of the land. A judge must understand that the warrant of his appointment is not a proclamation of his coronation as a king who is above the law. Even for a king it now stands settled that “howsoever high you may be the law is above you”. It is but obvious that a judge, on account of the nature of his job, is more bound to obey and follow the law than any other citizen. A judge trying to do justice by ignoring or disregarding the law does so at the peril of shaking the very foundation of the judicial system itself as such an approach destroys certainty and predictability of judicial response. This in turn gradually cuts across and erodes public confidence in the judiciary which is so important for maintaining and safeguarding its independence. The final frontier for independence of judiciary, therefore, is that the judges should shake off every other consideration from their minds and should decide the matters placed before them in accordance with the law and nothing but the law. This I believe is what would be the ultimate cutting edge in our quest for independence of judiciary.
The constitution of Pakistan as
originally framed provided by clause (3) of Article 175 that the Judiciary shall
be separated progressively from the executive within three years from the
commencing day. The commending day was defined in clause (2) of Article 265 14th
day of August, 1973. By various constitutional amendments the period of three
years was extended to fourteen years and even the constitutionally prescribed
fourteen years expired on the 14th of August, 1987. During this
period of fourteen years, no progressive step was taken, not to my knowledge,
for achieving this constitutional mandate. The most unfortunate part is that
even after over a year of the expiry of the prescribed period, as much
unawareness and unconcern is being shown as during the preparatory period. Now
the citizens of the country are invoking and have invoked the constitutional
jurisdiction of the High Court for getting from the Government this
constitutionally ordained duty performed. A very sad reflection on prevailing
state of affairs.
In any other set up one would
have thought that the use of the word progressive would have given a fair
indication of the legislative intent. All the necessary ground work should have
been undertaken and completed by the date prescribed in the Constitution. One
would have thought that the Federal Government at its level and the Provincial
Governments and the High Courts at their level would have set up Committees with
a mandate to meet periodically, say
once a quarter, to ensure the
compliance with the constitutional requirement in letter and spirit. The task is
not easy. By separation the burden of the judiciary is bound to increase
manifold. I had occasion to point out elsewhere
that the supervisory role prescribed for the High Court and the District judges
over the subordinate Judicial officers is not being performed with that
regularity and thoroughness as is prescribed under the law and the rules framed
or is required currently. In this state of affairs without strengthening the
supervisory role the taking up of the additional responsibilities of the
Magistrates would be adding to the problems. The supervisory role of the High
Courts and of the District Courts can straight away be revitalized by the last
Law Commission’s recommendation for appointment of Judicial Ombudsman and an
inspection Wing working under it, so that all that is required by law is done in
accordance with law. Another factor which requires deep and sound handling is
the personnel management. The requirement of Magistrates and the supervision
over them by the District and Sessions Judges and their terms and conditions of
service and prospects of promotion and integration into formalized judicial
service, all deserve immediate attention. In the absence of proper attention to
these ancillary but necessary matters not only the judicial work is likely to
suffer but also the reputation and the capacity of the judiciary to come up upto
the expectation of modern age.
Some recent changes in the law
necessitate repeated crash training programmes for Presiding Officers of
criminal trial courts in order to acquaint them with the needs of the time, the
object of the legislation and the amendments and their understanding and
implementation. In the first place, in order to induct the Islamic principles in
the criminal law of the country, the Hadood Ordinances have been enforced which
cover offences against property,
Qazf, Zina, Prohibition. The Evidence Act has also been recast. In order to make
the administration of criminal justice more effective and speedy, the
distinction between the summons procedures and the warrant procedure has been
done away with and so also the commitment proceedings. There has been made a
provision for almost automatic bail where the accused is in custody and has been
kept too long pending his trial, investigation or appeal after conviction.
Speedy procedures and separate Courts for speedy trials have been set up. I do
not propose to give an exhaustive discourse on Criminal Trial Procedure as such
but only point out some of the shortcomings and deficiencies which we have been
noticing while hearing the appeal etc.
Section 241-A Cr.P.C. requires
for the benefit of the accused certain steps to be taken and their compliance
ensured by the trial Court. In all serious criminal cases instituted on Police
report, copies of statements of all witnesses recorded under section 161 and 164
and the Inspection Notes recorded by an Investigation Officer on his first visit
to the place of occurrence are required to be supplied free of cost to the
accused not less then seven days before the commencement of the trial.
Similarly, in complaint cases, the complainant has been placed under duty to
supply a copy of the complaint and the gist of the evidence which he is likely
to adduce at the trial. The strict non-compliance of this provision has been
taken to be not fatal to the proceedings but the proceedings get vitiated if the
accused is able to point out, and his burden is very small indeed, that he has
been prejudiced at the trial by the non-compliance with this provision.
Therefore, it is very necessary that the trial Courts ensure the compliance with
these provisions and even if at an intermediary stage an omission is found to
have taken place or a new witness is sought to be introduced, rectification
should follow and the statement of such witness should be supplied.
Non compliance or improper compliance with this provision entails long
argument and lengthy discussions in judgment on the effects thereof and all this
can be avoided if the persecutor is placed under a duty and the trial Court
ensures its compliance at the very initial stages. RELIANCEON EVIDENCE COLLECTED DURING INVESTIGATION AND ON THE OPINION OF
THE INVESTIGATION OFFICERS.
The complaint as well as the
accused both at times feels dissatisfied with the conduct of the investigation
by the Police. Repeated requests are, therefore, made and the cases get reopened
for investigation either by the same agency or by a more specialized agency or
by a superior officer. It is a power of the Police which can not be controlled
directly by the courts in the absence of Law. Inevitably sometimes the
Investigating Officers form conflicting opinions about the veracity of the
complainant’s case or the culpability of the accused. At the trial it is the
effort of the counsel to get such opinion of the Investigating Officer which is
considered to be a very considered and objective opinion brought on record and
courts at times unwittingly utilize it along with the other evidence for forming
their own opinion with regard to the merits of the case. It should be realized
that such opinion formed by the Investigating Officer are inadmissible in
evidence and should not be at all brought on record. If all they have been
inadvertently brought on the record they should be expressly excluded from being
considered along with the other evidence.
The Investigating Officer has
also now resorted to a device to over simplify their duties. They ask the people
where the crime has been committed to take oath on Holy Quran. If the number of
persons taking such oath favours one version it finds acceptance by the
Investigating Officer, who is ready and willing to transmit such opinion to the
trial court without disclosing the
concrete basis for his opinion. Not
only such a procedure of investigation is to be deprecated any reference to such
an opinion at the trial should also be avoided. Similarly the statement witness
recorded by the Police should not be utilized except after confronting the
witness with it and proving the statement in accordance with law.
A practice has been in vogue
whereby a criminal trial court is kept at the mercy of the Investigating Agency
by its submitting incomplete Challan and delaying the submission of the complete
challan indefinitely. The Criminal Courts have developed a tendency of treating
the case instituted as from the date when complete challan is submitted. In this
manner the Courts record of pendency remains unaffected and the duty of the
Investigating Agency is shown to have been performed, when neither is correct.
This practice has been deprecated in the case of Noor
Dad and other Vs. The State (1973 Law Notes 35) and the courts have been
directed to guard themselves against it. This decision needed wider circulation,
greater attention and observance both at the hands of the Investigating Agency
and at the hands of the criminal courts and their supervisory authorities. I
reproduced hereunder what was recorded in that case for our guidance:-
“There is no such thing in the law as an interim charge-sheet. There is
no warrant Whatsoever for
the practice which is now prevalent of sending up a charge-sheet described as
interim challan to satisfy the mere form of the law taking it for granted that
the investigation will continue and the case not allowed to proceed. The correct
positions that this charge-sheet is one upon which cognizance can and must be taken.
It is true of course that despite this the police may continue its investigation;
nothing in the Criminal Procedure Code prevents it and the fact of the cognizance
taken does not stand in the way of further investigation. It is equally true,
however, that such an investigation does not and can not be allowed to stand in the
way of the trial. If the case does not proceed after cognizance it can only be
as a result of the order of adjournment granted by the Magistrate u/s 344 of the Cr.P.Code, which is as much a judicial order as any order that a magistrate can pass. Only
if proper grounds are shown to a Magistrate Justifying such a course he should
grant an adjournment; otherwise clearly he should proceed. It is not for the
investigating authority or a prosecution agency to take it for granted that upon
an interim charge-sheet having been produced the forms of the law have been
satisfied and they are then at leisure to proceed with the case when they
please. An order of this kind by a Magistrate, I regret to say, is altogether
too mechanically being made now-a-days and I sincerely hope that Magistrate in
future will apply their mind judicially to see whether there exists any special
reason why such an adjournment should be granted. I have no doubt that
Magistrate has sufficient powers under Criminal Procedure Code to enforce
compulsorily the attendance of witnesses where necessary and if that becomes
necessary then I have equally no doubt that they will use their powers
accordingly.” OBJECTIONS TAKEN TO THE ADMISSIBILITY OF EVIDENCE – THEIR DISPOSAL.
It is customary with our courts
both Civil and Criminal to note the objections of either side to the
admissibility or inadmissibility of particular evidence while it is being
tendered or produced in court. They are not usually forthwith dealt with, may be
for good reasons, or disposed of immediately. However, after having noted an
objection to the admissibility of a piece of evidence it is necessary that it
should not be altogether ignored while appraising pronouncing judgment taken
note of and appropriately dealt with. For various reasons after the commitment
proceedings have been done away with, the recording of evidence in criminal
cases is piece-meal and spread over a long period. It, therefore, becomes
difficult at the end of the trial to take stock of the objections and to deal
with them. When the proceedings were from day to day and the evidence was fresh
and so was objection it was easier to deal with them while pronouncing judgment.
Under Section 342 of the Code of
Criminal Procedure, the Court is empowered to question the accused any time with
a view to enable him to explain any circumstances appearing in the evidence
against him. This examination is usually done at the conclusion of the evidence.
On account of the piece-meal recording of the evidence it is sometimes not
possible for the Court at the stage of examination of the accused to take into
account every factor which has been brought on record against him. Though the
appellate courts have been showing some indulgence in condoning such
mal-performance of the trial court, the duty is not well discharges if such
omission takes place. Each Presiding Officer should, therefore, devise his own
method of marshaling the facts brought out at various stages so as to thoroughly
question the accused and not to leave any material question adverse to him
unattended.
For certain Hudood offences and
Tazkia-e-Shahdood is mandatory. It amounts to a trial within a trial. The
credibility and the character of the witnesses can be screened as fairly and as
thoroughly as can be consistent with the punishment awarded under the Hudood
Ordinance. The superior courts have laid down the standard and the procedure but
primarily it is for the trial court to act diligently in the matter and keep the
record as perfect and thorough as possible. For Hadd punishment the foundation
rests on the credibility of the witnesses and not so much on the circumstantial
evidence existing or appearing. For this reason it is the single most important
item in Hudood trial.
The instructions of the High
Court emphasize the need of correctly recording the age of the accused
particularly with a view to distinguish a Juvenile offender from an adult one.
In the matter of sentencing, and at times in judging the question of criminality
e.g. the influence of elders, the age and the background of the accused, age
plays an important part. It is true both of the old age as well of the young
age, the initiated as well as the uninitiated. It has been noticed that the
Presiding Officers do not discharge this duty with care, of making an
independent note of the age of the accused facing trial. The result is that
there is lot of avoidable controversy in appeal about the exact age of the
accused when the committed that crime and the record do not prove helpful in
resolving it one way or the other. The trial court should know and keep in mind
the peremptory words in which the High Court has in its Rules emphasized this
duty. THE SENTENCE OF FINE AND COMPENSATION.
An examination of Section 545 of the Criminal Procedure Code
as also the instructions of the High Court Rules and Orders on award of
compensation and costs show that the imposition of fine was intended to serve
the three-fold purpose apart from punishing the convict. The first of these is
for defraying of expenses properly incurred on the prosecution. The second is
the payment to any person of compensation for any loss, injury or mental anguish
or psychological damage caused by the offence when substantial compensation is,
in the opinion of the Court, recoverable by such person in a Civil Court. The
third purpose is providing compensation to bonafide purchaser of misappropriated
or stolen property etc. We all know that in this country this provision has not
been worked to its full bloom. The result was that the legislature had to
intervene by enacting Section 544-A in 1980 and making it obligatory on court
what was earlier discretionary and left to the good sense of the courts. Even
now only one category has been attended to under Section 544-A and the others
are yet awaiting proper handling at your end under Section 545 Cr.P.C. The power
of sentencing a convict should be so exercised as to be illustrative of the
sense of justice and fairness prevailing in the Society. The complainant’s
role of one seeking a personal vendetta should be replaced by that of a citizen
seeking an orderly and just society for himself and the posterity. Look at the
increasing stakes of a complainant and the risk to the witnesses in prosecuting
the criminal, all over the world.
As student of criminal law all
of us had some difficulty in properly comprehending in the first go the exact
connotation of culpable homicide amounting to murder and culpable homicide not
amounting to murder. It is at the trial when more common places words are used
that matter gets further confused. I found both as a trial judge and as an
appellate judge that in practice the confusion is confounded by the
indiscriminate use of the expressions sudden fight, free fight and self-defence,
all raised at the same time and these expressions are used as if they all go
together. The lawyers too at time get confused and transmit their confusion to
the record to obtain a benefit for the party whom they represent. However, the
courts have to be very clear. Free fight is a deliberate intended act on both
the sides and has nothing to do either with sudden fight or with right of
private defence of person as such. Each party has to bear the full burden and
none can plead mitigation either on account of sudden fight or on account of
acting in self defence. If it is one sided aggression, then of course question
of self defence will arise and where it does arise, the Court has further to
record a finding that the right of self defence has not been exceeded.
Suddenness involves absence of premeditation or forethought. Sudden fight is not
free fight and no question of self defence arises in case of sudden fight. The
law, laid down in 1958 in Akhtar
Hussain Vs. The State (PLD 1958. SC. 251) which still holds the field
illustrates this point in following words.
“The two parts of the incident must have occurred almost
simultaneously. If this line of
approach is adopted, the question of self defence would become merely academic. In
such cases, it would be immaterial which party offers the provocation or commits
the first assault in view of the Explanation to Exception 4 of Section 300 PPC.
The murder of Muhammad Yaqub must in that case be taken to have been committed
without permutation in a sudden fight in the heat of passion upon a sudden
quarrel and it would not be said, having regard to the injuries inflicted on
either side, that the offenders had taken undue advantage or acted in a cruel or
unusual manner….”
In this background either it is
a case of sudden fight or of free fight or of self defence never a combination
of any of these.
As most of you are, or will be
presiding over both the Civil and well as the Criminal Courts, it is necessary
for you to keep in view the difference in handling the two types of cases. In a
criminal trial the totality of the cases has to be seen and its broad features
examined. A good perception of the environment from which the criminal cases
come up is an invaluable aid in appreciating, understanding and analyzing the
human behaviour
Criminal cases have to be disposed of expeditiously without giving long
adjournments. In Civil matters the piece can be more leisurely; each piece of
evidence is scrutinized with care and tested for its relevancy and admissibility
by reference to law. The decision is by preponderance of evidence. If you keep
this difference in view you are mere likely to strike a balance in performing
your duties as a judicial officer. With the increasing role of Tribunals and
Personal Designate in your life you must widen your horizon must get initiated
in the Rules of Business of the Governments, the formulations of Social Policies
and objectives through which these are best achieved. Training at the Academy
and some on he job training can best equip you for such duties.
INTRODUCTION
When
the topic was first selected for a discussion, I thought it was "Decision
Making". However, it was only the result of some misunderstanding and it in
fact is "Judicial Decision Making". Since the topic is rather large in gamut,
I propose to confine it to Judicial Decision Making in Civil matters; which of
course emanates from the consideration that Decision Making in Civil and
Criminal matters requires a different approach and it can be properly examined
only from different points of view.
OBJECTIVES
2.
The objective to be achieved is to improve the participants' skills in Making
Judicial Decisions. By the end of the session they will be in a position to
pass proficient judicial orders, better in substance, quality and
effectiveness, such as would be able to sustain public scrutiny. The bottom
line is provided by the consideration that a Court's authority, possessed of
neither the purse nor the sword, ultimately rests on sustained public
confidence in its moral sanction. It may be asserted, without fear of
contradiction, that its authority is moral rather than physical. It operates
only by influence and not by its power alone. Therefore the Judges,
particularly those of the subordinate dispensaries must depend upon public
support for the ultimate efficacy of their judgements, which they can contrive
by making lawfully correct judicial decisions, and where they do not find any
law in support, by rendering judicial orders having the linchpin of their
conscience.
3.
It must always be borne in mind that the purpose of a good judicial decision
is not the advancement of the Judge but of justice which he is enjoined to
administer. It should be made to look towards what is established at the trial
and is accordance with law, even though the process may not lead to what they
call substantial justice in criminal cases. It means the mental ascertainment
of a correct legal or factual position by the judge before he goes on record
with the result of that ascertainment.
WHAT
IS JUDICIAL DECISION MAKING
4.
For proper appreciation of phrase "Judicial Decision Making", we must have an
understanding of the word "Judicial". As we have it from the Law Lexicon,
Ballentine's Law Dictionary, West's Legal Thesaurus and Webster's Dictionary,
the word "Judicial" means charactersing whatever emanates from a judge as such
or whatever proceeds from Courts of justice. Judicial Decision Making is a
formalized process whereby decisions are made by the Presiding Officers of
Courts, seized of the settlement of a dispute between two parties. It
postulates the presence of a situation where two parties are before a Court of
law with adverse claims. To start with, it is a mental business which enables
the judge to make a decision in his mind about the correctness or otherwise of
a statement or proposition from a legal point of view.
JUDICIAL
DECISION AND JUDGMENT
5.
A judicial decision is not exactly the same as "judgment" and the courts have
recognized the distinction between two words. The Law Lexicon dictates that a
finding of fact or conclusion of law by the judge trying a case, or his
decision of a controverted point, or opinion upon the matters submitted,
whether oral or in writing, does not constitute a judgment; and it is not such
a definitive sentence or adjudication as is contemplated by that term. The
distinction lies in the fact that order is a decision made during the progress
of the case, either prior or subsequent to final judgment, settling some point
or practice or some point collateral to the main issue presented by the
pleadings and necessary to be disposed of before such issue can be passed upon
by the court, or necessary to be determined in carrying into execution of the
final judgment.
6.
For exact import of the word "judgment", we may make a reference to Black's
Law Dictionary which defines it as "the official and authentic decision of a
court of justice upon the respective rights and claims of the parties to an
action or suit therein litigated and submitted to its determination. It means
the final decision of the court resolving the dispute and determining the
rights and obligations of the parties. Further, it is the law's last word in
a judicial controversy, being the final determination by a court of the rights
of the parties upon matters submitted to it in an action or proceeding.
7.
The Code of Civil Procedure also makes a distinction between "judgment" and
"orders" made during the course of proceedings before a court, which, as we
understand from law Lexicon, is a judicial decision. Under section 2 (9),
"judgment" means the statement given by the judge of the grounds of a decree
or order. In accordance with section 2 (14), "order" means the formal
expression of any decision of a Court which is not a decree. As we have seen,
judgment has been defined as the statement given by a judge of the grounds of
a decree or an order. It suggests that if a judicial order is supported by
grounds it also amounts to judgement. In spite of this circumstances, however,
order is not exactly the same as judgment, which is manifest from the fact
that these words have been separately dealt with and defined by the Code.
8.
It may, however, be kept in view that word "Order" too has been mentioned in
the definition of the word "judgment" in section 2(9) of the Code, which
brings about a paradox. But we do have an explanation, in that the word
"Order" in the definition of "judgment" signifies final order granting or
refusing to grant relief in a civil matter. Therefore, when we come to think
of it, this can be resolved with the statement that word "judgment" includes
an order based on grounds given by the judge, but the reverse is not true;
that is to say that the word "order" does not include a judgment, which is
final decision of a court resolving disputes between the parties with
determination of their rights and obligations.
9.
This conclusion is supported by rules 1 and 3 of order XX of the Code. Rule
1(1) says that "on completion of evidence, the Court shall fix a date, not
exceeding fifteen days, for hearing of arguments of parties". Sub-rule 2
provides that "the Court shall, after the case has been heard, pronounce
judgment in open Court, either at once or on some future day not exceeding
thirty days, for which due notice shall be given to the parties or their
advocates". Rule 3 provides that "the Judgment shall be dated and signed by
the Judge in open Court at the time of pronouncing it and, when once signed
shall not afterwards be altered or added to, save as provided by section 152
or on review".
10.
It is clear from these provisions that judgement is formal pronouncement of the
decision of a court finally determining the rights and obligations of the
parties and resolving the dispute between them. It requires the observance of
certain formalities laid down in the Procedure Code. After arguments of the
parties have been heard, it has to be dated and signed by the Judge in open
Court at the time of its pronouncement and once signed it cannot be altered or
added to, save as provided by section 152 or on review. The observance of legal
formalities has to precede the pronouncement of final judgment to be followed by
a decree.
11.
This is not so in the case of "orders" which have been separately dealt with
under section 104 (1) which provides that "an appeal shall lie from the
following orders, and save as otherwise expressly provided in the body of this
Code or by any law for the time being in force and from no other orders". An
appeal is expressly allowed under rule 1 of Order XLIII of the Code of Civil
Procedure which enumerates the orders from which an appeal lies under the
provisions of section 104 of the Code. These provisions make a very clear
distinction between a judgement and orders under section 104 read with rule (1)
of Order XLIII. They are judicial decisions not amounting to judgments, in that
they do not finally determine rights and obligations of the parties to suits or
proceedings before the Court.
HOW
TO MAKE A JUDICIAL DECISION
12.
The orders, either appealable or otherwise made under different provisions of
the Code of Civil Procedure are based on factual situations; which are provided
by the pleadings of the parties, claims arising out of and grounded on those
pleadings and the orders or judicial decisions sought to be made, relevant legal
provisions and the arguments of the parties. We might say that findings of the
court on issues involved in a suit for determination are also the result of
judicial decisions. The courts have to be equipped with necessary skills for
qualitative judicial decisions or orders, which are passed to settle various
controversaries between the parties, necessary to bring the matter to a stage of
final judgment. For quality decisions, the judicial officer concerned should be
conversant with relevant provisions the law applicable to the matter before him.
13.
The points for determination, the decisions on those points and the reasons in
support provide us only with an outline to be converted into a whole with the
expression of courts' mind. The material and the arguments seeking a particular
relief, facilitate the making up of mind, which finds expression in a formal
judicial decision. This mind making requires marshalling of facts and
circumstances of a case, as also sound and practical knowledge of the legal
principles applicable to these facts.
14.
Before taking leave of the matter, I may quote with advantage Mr. B.P.Beri,
former Chief Justice of Rajasthan High Court. He said "the process of reaching a
conclusion by a Judge on a question of fact or law calls for the knowledge of
human behaviour, the motivation of the parties in the background of social norms
to which they belong, awareness of the principles of interpretation and the
changing laws. All this equipment is of little effect unless the Judge is
equally skilled in presenting his thought-process by the medium of words in
coherent, clear and concise manner.
Criminal Trial- Recent
Changes
JUDICIAL DECISION MAKING