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National News
June 08,2017

‘A judge who opens his mouth …..’ (II)

Zafarullah Khan

3. Indian Experience

(a) In Indian jurisdiction, in KP Singh vs High Court of H.P. and LPA No. 163 of 2009, it is held: ‘Integrity according to Oxford dictionary is moral uprightness; honesty. It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short it depicts sterling character with firm adherence to a code of moral values. Judiciary is an integrity institution. Therefore, judicial officers should possess the sterling quality of integrity’.

(b) The Supreme Court of India in Tarak Singh vs. Jyoti Basu, (2005) 1 SCC 201 held that ‘Integrity is the hallmark of judicial discipline, apart from others. It is high time the judiciary took utmost care to see that the temple of justice does not crack from inside, which will lead to a catastrophe in the judicial-delivery system resulting in the failure of public confidence in the system. It must be remembered that woodpeckers inside pose a larger threat than the storm outside’.

(c) In High Court of Judicature for Rajasthan vs. Ramesh Chand Paliwal, (1998) 2 SCC 72, Judges have been described as ‘hermits’, further reminding that, ‘they have to live and behave like hermits, who have no desire or aspiration, having shed it through penance. Their mission is to supply light and not heat’.

4. Pakistani paradigm

(a) Sections 265-G and 423 of the Code of Criminal Procedure, 1898, provides hearing the parties or their pleaders, if they appear, before a judgment is pronounce.

(b) The Order XLI, Rule 30 of the Civil Procedure Code, 1908, requires that the Court, after hearing the parties and referring to any part of the proceedings, shall pronounce judgment. A hearing means a respectful and fair hearing of all the parties without a shouting match between a judge and a lawyer or hurling of harsh words at a party.

(c) These statutory provisions in the Civil and Criminal Code have been subject of judicial scrutiny before our higher courts in numerous cases and almost invariably it has been categorically declared that a right of ‘hearing’ ensured in these provisions of laws necessitates a full opportunity being made available to a party to state his case. Therefore, any unnecessary usurpation of or interference with this discretion of a party at the hands of a judge is liable to prejudice the said party’s right of hearing and, ultimately, may render the judgment or the trial to be vitiated on account of his defect alone.

(d) In Imranullah v The Crown (PLD 1954 F.C. 123), Justice Cornelius, while discussing the question of an appellant’s right of hearing, observed as follows: ‘The expression ‘hearing’ is employed in Section 423(1) of the Cr. P.C. to indicate compendiously both the right of address possessed by the appellant as well as the duty of listening to the address imposed upon the Court’.

(e) Articles 178 and 194 of the Constitution 1973 obligate upon the judges of the superiors courts to take an oath of office which says: ‘I will discharge my duties, and perform my functions, honestly to the best of my ability and faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law:…. That I will abide by the code of conduct issued by the Supreme Judicial Council:…..That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan: …..And that, in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill-will’. Let me clarify here that there is a chapter in the Constitution that spells out the fundamental rights of every citizen, including right to dignity that must be protected at all costs by the judges.

(f). The Supreme Judicial Council under the Constitution has promulgated a code of conduct for judges of the superior courts (2009), the Preamble of which reads: ‘The Constitution, by declaring that all authority exercisable by the people is a sacred trust from Almighty Allah, makes it plain that the justice of this nation is of Divine origin. It connotes full implementation of the high principles, which are woven into the Constitution, as well as the universal requirements of natural justice. The oath of a judge implies complete submission to the Constitution, and under the Constitution to the law’; ‘To be a living embodiment of these powers, functions, and obligations calls for possession of the highest qualities of intellect and character’; ‘Equally, it imposes patterns of behaviour, which are the hall-mark of distinction of a judge among his fellow-men’; Article II reads: ‘A judge should be God-fearing, law-abiding, abstemious, truthful of tongue, wise in opinion, cautious and forbearing, blameless, and untouched by greed. While dispensing justice, he should be strong without being rough, polite without being weak, awe inspires in his warnings and faithful to his word, always preserving calmness, balance and complete detachment, for the formation of correct conclusions in all matters coming before him’; ‘In the matter of taking his seat and of rising from his seat, he shall be punctilious in point of time, mindful of the courtesies, careful to preserve the dignity of the Court, while maintaining an equal aspect towards all litigants as well as lawyers appearing before him’.

(g) Mr. Justice Asif Saeed Khan Khosa, the learned judge of our apex court, in his earlier academic article (‘Judge Who Opens His Mouth…’ PLD 1989 J 32), while discussing about the observations made by the judges or interruption made by them, writes: ‘It goes without saying that such a disposal of cases leaves a very bitter taste both for lawyers and their clients – a thing not conducive to the interests of justice at all. ….The effect of this on the litigant is disastrous as he goes dissatisfied because although justice might in fact have been done yet for him it is not seen to have been done in his case……. This shakes the litigant’s confidence in the Judiciary and the same then ultimately upsets the very fabric of the society. No wonder that Lord Chancellor Bacon had observed that ‘an over-speaking Judge is no well-tuned cymbal’. A cymbal stands for music, which in turn represents harmony. Thus, an ill-tuned cymbal cannot create harmony, which is so essential for balance. Such a balance, says Bacon, can only be achieved by a judge through patience and gravity of hearing. Probably it was in this context that Palles C. B. had remarked that ‘Judge who opens his mouth closes his mind’ — a statement so strong and yet very often so true’.

It can rightly be concluded that a judge has opted to be a hermit of the divine temple of justice for whose illumination, Allah has sent all the prophets and all the Books. The judges have to be silent or mellow as a recluse otherwise they will desecrate the divine temple for which they will be punished with public damnation in this world and banishment to the Fifth cycle of the Hell where they will be in the swampy, stinking waters of the river Styx wherein the actively wrathful fight each other viciously on the surface of the slime, while the sullen (the passively wrathful) lie beneath the water, withdrawn, into a black sulkiness which can find no joy in God or man or the universe, says Dante.

The author is a Barrister and Special Assistant to the Prime Minister for Law and Justice


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