“All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.”—Andrew Jackson 7th US president (1829-37).
In his letter written to the newly appointed Governor to Egypt, Maalik Al-Ashtar, Caliph Hazrat Ali (AS) laid down some marvelous rules of governance to enable the statesman to establish peace, justice and prosperity in the land. In addition to eradication of poverty, checking corruption, helping the downtrodden and making peace with enemies, his advice on selecting members for judiciary is priceless. He wrote more than fourteen centuries ago:
“You must select people of excellent character and high caliber with meritorious records. When they realise that they have committed a mistake in judgment, they should not insist on it by trying to justify it. They should not be corrupt, covetous or greedy. These appointments must be made without any kind of favoritism being shown or influence being accepted; otherwise tyranny, corruption and misrule will reign.. Let the judiciary be above every kind of executive pressure or influence, above fear or favor, intrigue or corruption.”
In today’s modern world nothing much has changed as apparent from the requisite qualities of judges according to the Canadian Superior Courts Judges Association’s website—The judge is “the pillar of our entire justice system,” the Supreme Court of Canada has said, and the public has a right to demand “virtually irreproachable conduct from anyone performing a judicial function.” Judges must strive for the highest standards of integrity in both their professional and personal lives.”
Legendary Justice Oliver Wendell Holmes once said that a Supreme Court Justice should be a “combination of Justinian, Jesus Christ, and John Marshall”—a saint, a prophet and the longest serving (34 years) chief justice of USA. All these persons are men of high integrity and moral standards, with Christ as the direct representative of the Al-Mighty.
In other words the position of the judge, whether of the lower or upper courts, is extremely sacrosanct. Even though they are looked upon in awe by the common people, the fact is that the persons who are selected for these posts have immense responsibilities on their shoulders. Dispelling justice is no ordinary feat. It requires a highly judicious mind, a totally unbiased attitude and a thorough knowledge of laws and procedure. The matter does not end here. A judicial authority has to be an excellent, modest and infallible human being—characteristics which many may say, are peculiar to prophets and saints. Yet, a closer observation of various judicial systems would reveal that these are the very qualities on the basis of which judges of, at least the supreme courts, are selected.
Steven Platt, who served as a judge for twenty five years in the USA wrote an article describing at best eleven qualities that an applicant for a judicial post should be endowed with. Among traits like, having a judicial temperament, intelligence, ethics, courage and integrity, experience and education, suitability to workload, continuing legal education, ability to communicate, civic and professional responsibility and health, the most outstanding one is quoted as:
“Character: This most important overall quality is a key intangible. The applicant should be of the best character. He or she should have a positive reputation in every professional and residential community. His or her background should be free of references to immorality or indiscretions. He or she should be free of a history of substance abuse or substance dependence, and free of indications domestic violence, publicly unacceptable conduct and the like. Candidates should be financially stable.”
The ability to stand up for the truth and justice even if it means the displeasure of the person, who appointed a judge, is also worth mentioning. According to Professor Melvin Urofsky, “Practically every justice appointed has, at one time or another, disappointed the president who named him (or her).” This was with reference to Neil McGill Gorsuch, a Donald Trump appointee who reportedly said that Trump’s comments toward the judicial system were “demoralizing and disheartening.” This was allegedly in response to a tweet the president posted calling federal Judge James Robart a “so-called judge” after Robart put a hold on Trump’s travel ban on people from seven Muslim-majority nations.
Since the judiciary is one third of the government, judges should be mindful of how cases play out in the real world. As Urofsky opined that an ideal judge is someone who at least understands how the government actually works. This clearly means that those serving in high judicial posts should be cognizant of the way things are done at the level of policy and execution. There is no place for egoism in the judiciary and matters need to be handled in the most sensitive way. Take the instances of Reko Diq and Diamer-Bhasha and Mohmand dams. In the case of former, Pakistan has been slapped a heavy penalty of about US $ 6 billion and the latter never got to see the light of dawn just because the justices involved were too full of themselves having no regard for ground realities..
Unfortunately in Pakistan, there has been a gradual decline in the quality of judiciary for a variety of reasons—appointments to important posts made on the basis of likes and dislikes, favouritsm, nepotism and amount of influence an appointee has in the political circles etc.—of course during certain times. Meritocracy appears to have taken a back-seat long time back. At times, there is more of political activism at the judicial level rather than disbursement of justice. Even some of the decisions that are written by the ‘best’ of judges contain elements of bias against petitioners and in favour of the government despite obvious points to the contrary. On these accounts, the most alarming aspect emerging from this discourse is the diminishing respect of the public at large for judiciary. Day by day, not only are politicians, bureaucrats and other government officials being subjected to bitter criticism, but now, even judges, in whose honour the court attendants are supposed to stand in reverence are not being spared. It is high time for all involved to reconsider judicial policies, judicial offices and judicial appointments.
The writer, lawyer and author, is an Adjunct Faculty at Lahore University of Management Sciences (LUMS)