Appointment of judges

Judge, justice and court are often used synonymously or interchangeably. The word Judge denotes not only every person who is officially designated as a judge, but also every person who is empowered by law to give, in any legal proceedings civil or criminal, definitive judgement which, if not appealed against, would be definitive. Judges are structural components of courts.
The terms Judge and Court are often used interchangeably as synonymous. But this is not to say that the distinction between a Judge as an individual and the Court as seat of Justice as an institution is completely obliterated. The two remains distinct entities and the distinction is manifest even in the excerpt from the American Jurisprudence. Generally speaking, a Judge is properly identified with the Court in relation to some thing done in exercise of the jurisdiction of the Court.
Otherwise, his personality remains distinct and separate from the Court. (Abrar Hasan-vs-Govt. of Pakistan PLD 1976 SC 315 (d) rel. at [p.349-350] KK). A Judge is to hear the case and not to ague with the lawyer or the litigant, who have prepared the case thoroughly and not had just glimpses. When a Judge hears the case, he must act fairly without any discrimination, inclination and should hear the case rather to argue the case. The duties of a Judge is to hear the case while the duty of the lawyer is to argue the case.
The Judges should uphold 'Will of God' and should be committed willing workers and they should demonstrate high capability to dispense with justice in accordance with law. Healthy criticism on Judgements should be encouraged. There must also be accountability of Judges. There should be consistency in the Judgments without its effects or consequences.
The fundamental rights enshrined in the Constitution can be enforced through the Judicial system specifically by approaching High Courts in a writ petition under Article 199 of the Constitution or directly in the Supreme Court under Article 184(3).
The Oath of office of a Judge of Superior Judiciary set out in the third schedule of the Constitution, inter-alia, provides that he will discharge his duties and perform his functions, honestly to the best of his ability, and faithfully in accordance with the Constitution of Islamic Republic of Pakistan and the law and will abide by the Code of Conduct issued by the Supreme Judicial Council and will not allow his personal interest to influence his official conduct or his official decisions and will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan and that in all circumstances he will do right to all manner of people, according to law, without fear or favour, affection or ill-will.
In November, 2005, the National Judicial Policy Making Committee (NJPMC) also approved additional provisions in the Code of Conduct for judicial officers that require them to be God-fearing, law abiding, abstemious, truthful, wise in opinion, cautious and forbearing, patient and calm, blameless, untouched by greed, completely detached and balanced, faithful to his/her words and meticulous in functions and should not show any fear or favour to any party before him or their lawyers, both in his judgement and conduct.
He should avoid mixing up with people, roaming in hotels, markets and streets except in dire need and should avoid rage and should have command and control over the proceedings in the Court and should be consistent in his judgements.
He should also be courteous and polite, but not weak towards the litigants and their lawyers and should maintain decorum of the Court and should always endeavour to decide cases expeditiously and should take necessary measures to ensure speedy justice and have effective control over the staff of his Court without being rude, rough or humiliating.
He should be punctual while taking or leaving his seat and should be dressed in a prescribed uniform and seated in a dignified manner, but not so as to look like an arrogant man. He should avoid hearing cases, receiving guests or his colleagues in the retiring room and should avoid hearing one party or his lawyer in the absence of the other, except in the cases of ex parte proceedings.
He should also not hear those cases in which he, his near relatives or close friends have got any interest and should not privately advise any of the parties so that it becomes a favour to the prejudice of the other party. The Judge should avoid to disclose his mind before concluding the hearing.
A Judge is to administer law and not to make laws. The Judge should have judicial capacity. If a Judge is sick, disturbed, or a patient of hypertension, he should avoid to sit as a judge, till his recovery both mentally as well as physically. No person should be a Judge of his own cause.
Every Judge is free to decide matters before him in accordance with his assessment of facts and his understanding of law without improper influences, inducements or pressures, direct or indirect, from any quarter or for any reason. (Govt. of Sindh-Vs-Sharaf Faridi PLD 1994 SC 105 (a) rel. at [p.107] A).
A Judge is disqualified from trying a case of law if he has either directed the prosecution after consideration of the information furnished to him or caused institution of an appeal or revision upon formation of opinion on the basis of the evidence.
Further, the basis of disqualification is that there is "personal bias or prejudice of such a nature as would necessary render a Judge unable to exercise his functions impartially in a particular case and this must be shown as a matter of fact and not merely as a matter of opinion".
If a person exhibits or demonstrates hatred for a particular class of persons in public speeches and projects views to the detriment of the said class of persons publicly, he would be disqualified to act as an arbiter in a judicial or quasi-judicial proceedings relating to them on the ground of bias. Ms Benazir Bhutto-VS-President of Pakistan PLD 1992 SCMR 140(n) rel. at [P. 173]N).
There are certain broad principles of natural justice deducible from two Latin maxims firstly, "Nemo in propria causa judex, esse debet (the rule against bias)" which formed the foundation of the doctrine firstly that no one can be Judge in his own cause which in a wide application means that a Judicial or quasi-judicial authority not only himself not be a party but must also not be interested as a party in the subject matter of the dispute which he has to decide and; second principle is "Audi alteram partem" (hear the other side).
BIAS IS SAID TO BE OF THE THREE DIFFERENT KINDS:
(a) A Judge may have a bias in the subject-matter which means that he is himself a party or has direct connection with the litigation, so as to constitute a legal interest. A "legal interest" means that the Judge is "in such a position that a bias must be assumed".
(b) Pecuniary interest in the cause, however, slight, will disqualify the Judge, even though it is not proved that the decision has in fact been affected by reason of such interest. For this reason, where a person having such interest sits as one of the Judges the decision is vitiated."
(c) A Judge may have a personal bias towards a party owing to relationship and the like or he may be personally hostile to a party as a result of events happening either before or during the trial. Whenever there is any allegation of personal bias, the question which should be satisfied is..."Is there in the mind of the litigant a reasonable apprehension that he would not get a fair trial?"
The test is whether there is a 'real likelihood of prejudice', but it does not requires certainty. 'Real likelihood' is the apprehension of a reasonable man apprised of the facts and not the suspicion of fools or "capricious persons". (Asif Ali Zardari-VS-The State PLD 2001 SC 568(a) rel. at [P.591 & 592]F.
The following is deducible from the Holy Quran and other Islamic literature on the subject of Administration of Justice.
(i). That the Holy Qur'an repeatedly enjoins that one who believes in Allah, His Prophet Muhammad (PBUH), Qur'an and Sunnah, should stand out firmly for justice, as a witness to Allah, even as against himself or his parents, his kin, rich and poor;
(ii). That the hatred of others should not make you depart from justice;
(iii). That the Judges are not to be led by personal likes or dislikes, love or hatred;
(iv). That the Judges should maintain strict impartiality and even treatment in the Court between and amongst the litigant parties notwithstanding that one of the parties might be very powerful and influential;
(v). To a Judge, all are equal in the eye of the law. As God dispenses justice among His subjects, so a Judge should Judge without any distinction whatsoever;
(vi). That a Judge must exhibit patience and perseverance in scanning the details, in testing the points presented as true and sifting facts from fiction and when truth presented itself to them, he must pass judgements without fear, favour or prejudice;
(vii). That the power to appoint inter alia Judges is a sacred trust, the same should be exercised in utmost good faith. Any extraneous consideration other than merit is a great sin entailing severe punishment;
(viii). That while selecting Judges the Authority concerned should be very careful. It should select people of excellent character, superior caliber and meritorious record. Abundance of litigations and complexity of cases should not make them lose their temper;
(ix). That a Judge should not be corrupt, covetous or greedy;
(x). That a Judge should be paid handsomely so that his needs are fully satisfied and he is not required to beg or borrow or resort to corruption;
(xi). That a Judge must be a man of having deep insight, profound knowledge of Shariah, God-fearing, forthright, honest, sincere and man of integrity;
(xii). That a Judge must be upright, sober, calm and cool. Nothing should ruffle his mind from the path of rectitude.
(xiii). That Judges should be given such a prestige and position in the State that none of the Government functionaries can overlord them or bring them harm. (Al Jehad Trust-VS-Federation of Pakistan PLD 1996 SC 324 (x) rel. at (P.428) AAA. In Surah Maida (5/45) it is ordained.
"If you Judge, Judge is equity between them, for Allah loves those who Judge in equity." "Judges are not to be led away by personal likes or dislikes, love or hate." (0 5/8) In administration of Justice, a Judge must be upright, sober, clam and cool. Nothing should ruffle his mind from the path of rectitude. If he does wrong, he is not only responsible to the people but also to God. No Judge shall pass a Judgement between two men while he is angry. He must not feel kindness in executing the ordained sentences for the prescribed crimes.
The Quran says; "Let not pity detain you in matter of obedience to Allah, if you believe in Allah and the Last Day and let a party of believers witness their sentences." He must decide disputes with as much as speed and promptness as possible, for delayed justice produces no appreciable good. He must not accept any present or bribe from the parties concerned. He must strive to arrive at a just conclusion. To a Judge, all are equal in the eye of the law.
As God dispenses Justice among His subjects so a Judge should judge without any distinction whatsoever. The Prophet said "previous nations were destroyed because they let off persons of high rank and, punished the poor and the helpless". In the Sharia, a Judge is a Judge for every matter - Civil, Criminal and Military. There is no separate judiciary for civil, criminal and military departments.
Islam has given great importance to justice, which must be done at all costs. Those who perform the function of the Qadis (the Judges) or Qadi-al Qudat (Chief Justice) must be not only men of deep insight, profound knowledge of the Shariah, but they must also be Allah-fearing, forthright, honest, sincere and men of integrity.
The Holy Prophet (PBUH), the Messenger of Allah, has said "The Qadis are of three types. One type will go to paradise and the remaining two will end up in the fire of hell. The person who will go to paradise is one who understood the truth and judged accordingly. One who Judged unjustly after understanding the truth, he will go to hell. Likewise, Qadi who judged in ignorance also will go to the hell." (Al Jehad's case (Supra) at (P.425 & 426).
The foundation of Islam is on justice. The concept of justice in Islam is different from the concept of the remedial justice of the Greeks, the natural justice of the Romans or the formal justice of the Anglo-Saxons. Justice in Islam seeks to attain a higher standard of what may be called "absolute justice" or "absolute fairness". (Al Jehad's case (Supra) at (p.425) ZZ).
Justice is a title given to Judges of higher Judiciary. The word justice is connected with the administration of justice. Justice should not only be done but should manifestly and undoubtedly be seen to be done. No person should be a Judge of his own cause. Justice is not a matter of temperament, although temperament imperceptibly plays a part in it, but a reflection of the good conscience of the society.
The Judge must be knowledgeable and not a whimsical man to be able to soundly interpret law because the judges have to get over the flaws of human language, which is the vehicle of legislative thought, as well as to get over the inevitable imperfection of legislative comprehensiveness.
The term Court means among other meanings, the sovereign's palace it has acquired where justice is administered. A Court may perform various functions. The word 'Court' in ordinary language bears different meanings according to the context. In recent years, the expression 'the Court or a Judge' has been frequently used and in this expression, the Court means a Judge or judges in open Court and a Judge means a Judge sitting in chambers. Court invariably means the Judge.
The Courts are not institution above the Constitution but are the creation of the Constitution. The Court can interpret the Constitution but has no jurisdiction to change it. It is not the function of the Court to see the consequences. Truth must prevail. The Courts do not decide abstract, hypothetical or contingent questions or give mere declaration in the air. There is no duty cast on the Courts to enter upon purely academic exercises or to pronounce upon hypothetical questions.
The Court's judicial function is to adjudicate upon a real and present controversy, which is formally raised before it by a litigant. If the litigant does not choose to raise a question, however important it might be, it is not for the Court to raise it suo motu. (Asma Jilani-VS-Govt. of Punjab PLD 1972 SC 139 (d) rel. at [P.166] E).
It is the bounden duty of the Courts to decide the cases on merits in accordance with law and the rules. The Courts, while dispensing justice, are duty-bound to apply the provisions of law in their true perspective and application of the same cannot be avoided simply on the ground that the said provisions of law were not brought to their notice by the parties.
A Judge must know the adage that a Judge must wear all laws of the Country on the sleeves of his rob and failure of the counsel to properly advise him is not a complete excuse in the matter. (Muhammad Gulshan Khan-VS-Secretary Establishment Division PLD 2003 SC 102 (b) rel. at [p. 1091 A).
It is the duty of the Court to apply correct law. Courts are bound to decide the cause list before them in accordance with law. Justice, according to law, is the duty of the Court, which can neither be abdicated in favour of whims or ignorance of parties or their counsel. (East West Ins Co Ltd-VS-Muhammad Shafi & Company 2009 CLD960 rel. at [p.966] A.
The Courts whilst administering justice are bound to keep in mind Injunctions of Islam, Constitutional Provisions, Charter of Human Rights as well as the law declared by the Supreme Court of Pakistan. (Amer Habib-VS-Senior Suptd. of Police 1995 CLC 29(a).
The duty of the Court is merely to declare what the law is and not to enforce the same and NOT to take the place of the Legislature as embodied in the Latin maxim Judicis est Jus dicere, non dare, meaning that it is the duty of a judge to declare the law, not to make it. It is for the Legislature itself to remedy any defect.
The Court is not concerned with the difficulties that the declaration of the Rules as a whole or in part as ultra vires, may create for the Government as laid down in the famous Latin maxim Fiat justitia ruat coelum ("Do justice, let the sky fall," or "Let justice be done though the heavens fall"). (Ghulam Hassan Punjani-VS-Govt. of Azad J&K 1975 AJ&K 81 (d) rel. at [p.99] H.I.
The Court derives its powers and jurisdictions from the Constitution, and that it will even confine itself within the limits set out in the Constitution which it has taken oath to protect and preserve and it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of the Court. (State-VS-Ziaur Rehman PLD 1973 SC 49(c) rel. at [p.69] D.)
The Courts are required to do justice though the heavens may fall as has been enshrined in maxim fiat justitia ruat coelum. (The State-VS-Haji Naseem-Ur-Rehman PLD 2005 SC 270 (f) rel. at (P.284) h. It is primarily the duty of the Courts and other adjudicating forums to decide list before them in accordance with law. The Courts and other forums are not relieved of this duty on account of an act or omission of a litigant or a lawyer. (Multan Elec. Power Co Ltd-VS-Muhammad Ashiq PLD 2006 SC 328 (G) rel. at (p.337)J.
The Courts are required to do justice between the parties in accordance with provisions of law, as the litigant, who approaches the Court for the relief is bound to substantiate that the procedure has been adopted by him in accordance with law because it is the elementary principle of law that if a particular thing is required to be done in a particular manner it must be done in that manner, otherwise, it should not be done at all. (Kbyber Tractors (Pvt) Ltd-VS-Pakistan. (PLD 2005 SC 842(b) rel. (p.854) B).
Every accused person has the right to a fair trial, namely, the right to be tried on the evidence by a judicially minded person. If the Judge is functioning under an influence brought about by his own act or by the act of another person, which has the effect of paralysing his judicial faculties, there is no fair trial. The fact that there was a paralysis of judicial faculties in a Judge cannot be proved by independent evidence but must appear from the manner in which he held the proceedings or arrived at his conclusion.
Bias in a Judge paralysis, complete or partial of judicial faculties and therefore the allegations of bias against a Judge would be wholly unfounded unless it be shown that the proceedings held by him were irregular and one-sided or the conclusions reached by him were wrong and reasons given in support thereof erroneous. (Anwar-VS-Crown PLD 1955 Federal Court 185(a) rel. at [P.210] B.
That for an independent and strong Judiciary, to uphold the rule of law and to have the trust and confidence of the nation in Judiciary, it is imperative that the aforesaid principles and guidelines are strictly followed/observed. Further, to achieve the above object, the appointment of Judges should be free from influence of the executive and political pressure.
(The writer is a Supreme Court lawyer.)