From time immemorial, human ingenuity has endeavoured to develop effective methods for dispensation of justice. After much thought and process, humans adopted the scheme of dispensing justice through judges.
In civilised polities, judges are deemed a class separate from society, and are expected to behave better than men of clay. Propriety demands a judge to be a person of integrity, impartiality, exactitude, moral vigour and ethical inflexibility. Accordingly, in almost all jurisdictions, a judicial code of conduct exists by virtue of which judicial behaviour conducive to the administration of justice is maintained.
Indisputably, Chief Justice of Pakistan Mian Saqib Nisar is an extraordinary legal mind. His rulings, particularly in the area of civil and constitutional law, are tremendous contributions towards the development of jurisprudence in Pakistan. It has recently become quite a norm to see the CJP addressing public gatherings, a fact that is duly reported by the media. On January 13, the CJP while addressing an audience in Karachi quoted Winston Churchill. A major section of the public, especially women, were irked at the CJ’s use of what they felt was Churchill’s sexist statement. Additionally, some quarters argued that the CJ should avoid addressing public gatherings since that is a violation of the code of conduct and contravenes the principle that judges should only speak through their rulings.
Essentially, two questions arise from the post-speech events: the first is whether public-speaking is a legal anomaly and violates the judiciary’s code of conduct.
The censure of public-speaking judges is misconceived, and an antiquated notion – especially in modern democratic societies wherein a vibrant media scrutinises each and every action of state institutions. Recent judicial trends from foreign jurisdictions also encourage judges to speak and address public gatherings. Ex-chief justice of Alberta, Neil Wittmann says: “Traditionally, the role of the judge speaking out was always, well, my judgment speaks for itself. And I don’t think the public, as represented by the media, accepts that anymore.” Canadian Supreme Court judge, John Sopinka says: “Judges are key players in the justice system; they can and should comment on matters relating to the administration of justice”. Sir Alan Moses, former lord justice of appeal in the UK is of the view that in order to ensure transparency and remove misunderstandings about the judicial system, judges must freely communicate with the public.
Article V of the Code of Conduct of our superior court judges states: “functioning as he does in full view of the public, a judge gets thereby all the publicity that is good for him. He should not seek more. In particular, he should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law”. It is clear that a judge of superior judiciary is not completely barred from speaking in public. However, in the pursuit of public-speaking judges should not hunt for promotion, which can be taken to mean that they should refrain from speaking too frequently on public forums. Moreover, judges should avoid making controversial comments especially those involving political disputes.
It is such a treat to see a superior court judge holding forth on rule of law, jurisprudence, legal ethics and judicial challenges. But it must be kept in mind that judicial oratory has its limits since judges are not politicians, and have to adhere to a code of conduct. It is humanly impossible for a judge to adhere to the code if s/he speaks too frequently in public. Study of speech psychology clarifies that prolonged and excessive speeches expose the oratory weaknesses of humans. Therefore, it is highly probable that a judge who speaks a lot in public might commit a faux pas or inadvertently reveal his/her ideological preferences. If later, an issue (about which the judge has already spoken) comes before him/her for judicial determination, will the litigants not feel prejudiced due to the judge already have made his/her opinion clear in public?
The second question to have arisen over this debate is whether the use of Churchill’s metaphorical wisdom was inappropriate. Unquestionably, Churchill was a gifted orator, probably the best the world has ever seen. But that doesn’t mean that whatever he said was reasonable and appropriate. A quick glance at British history reveals that Churchill is often labelled as a male chauvinist and an unmitigated misogynist – probably due to the fact that he fiercely opposed women’s suffrage when he was home secretary in the Edwardian period. In 2012, the Daily Telegraph wrote: “Churchill believed that women shouldn’t vote as they are well represented by their fathers, brothers and husbands”.
The quote used by the CJ isn’t Churchill’s metaphorical wisdom, but his allegorical folly which escaped wrath of the public because in Churchill’s time women’s rights weren’t a serious issue. In today’s world, though, the quote is chauvinist and inappropriate. Commendably, the CJP showed moral courage and did the right thing by acknowledging his mistake and apologising for having quoted Churchill.
The writer is a Lahore-based advocate of the high court.