Tuesday July 05, 2022

‘A judge who opens his mouth …..’

June 07, 2017

My beloved Greek philosopher, Plato (d: 348 BC) wrote in The Republic: ‘Justice is Virtue and Virtue is Justice’. The statement mesmerised me till I read The Quran that declares: ‘We have surely sent Apostles with clear signs, and the Book and the balance, so that the people may stand by justice’ (57:25). In other words, all the divine religious tradition is to create a society that is based on principles of justice.

The Muslim scholars maintain that ‘Adl’ is to put a thing in its right place’. This comprehensive definition of ‘Adl’ covers all the facets of human life; the judicial justice is only one aspect while the conduct of a judge is the very foundation of the justice. In my career as a civil servant and a lawyer, I have unfortunately experienced some officers and judges, especially of the higher judiciary, there being no effective corrective mechanism, raising their voices and insulting young lawyers and litigants. In this article I intend to discuss as what is required from a judge as far as raged behaviour is concerned.

1. Divine guidance

The divine or the divinely inspired guidance prescribes a rage-free rather a mild and mellow behaviour on the part of everybody and especially a judge:

(a) The holy Bible says: ‘He who guards his mouth and his tongue, Guards his soul (Proverbs 21) and ‘He that guardeth his mouth keepeth his soul; destruction shall be to him that openeth wide his lips (Proverbs 13).

(b) Allah sent Hazrat Moses to the Pharaoh with this advice: ‘Yet speak gently to him, that haply he may be mindful, or perchance fear (The Quran 20:44). None is now better than Moses and worse than Pharaoh; rather an arrogant is follower of Pharaoh.

(c) ‘O believers, be you securers of justice, witnesses for God. Let not detestation for a people move you not to be equitable; be equitable -- that is nearer to god-fearing. And fear God; surely God is aware of the things you do (The Quran: 5:8).

(d) ‘God likes not the shouting of evil words (The Quran 4:148).

(e) The Prophet (PBUH) said: ‘Two people who insult each other will have the sin of what they say, but the sin will be entirely upon the one who initiated it as long as the wronged party does not transgress bounds’ (Sahîh Muslim -2587).

(f) The Holy Prophet (PBUH) has said that a judge shall not decide when he is in rage (Bukhari: Kital-ul-Ahkam, 1060).

(g) Umar bin Khattab, the second Khalifa, wrote a letter to his governor Abu Musa Ashaari saying: ‘do not be angry in the courtroom as this is the time that you have to be just (Adaab-ul-Qaazi, p 165).

(h) Nahjulballaga letter 53 details a letter of Hazrat Ali to Malik al-Ashtar, Governor of Egypt: ‘So, control your passions and check your heart from doing what is not lawful for you, because checking the heart means detaining it just half way between what it likes and dislikes…. If the authority in which you are placed produces pride or vanity in you then look at the greatness of the realm of Allah over you and His might the like of which might you do not even possess over yourself. This will curb your haughtiness, cure you of your high temper and bring back to you your wisdom, which had gone away from you…. For the settlement of disputes among people select him who is the most distinguished of your subjects in your view. The cases (coming before him) should not vex him, disputation should not enrage him…..He should be most ready to stop (to ponder) on doubtful points, most regardful of arguments, least disgusted at the quarrel of litigants, most patient at probing into matter’.

(i) Umar bin Abdul-Aziz said that you shall not appoint a judge unless he is very patient otherwise he will deliver defective justice (Musaanif Abdulrazzaq, Vol 8, page 298).

2. Western Jurisprudence

(a) Francis Bacon (1561–1626), the English Lord Chancellor, says: ‘Patience and gravity of hearing is an essential part of justice; and an over speaking judge is no well-tuned cymbal’ (Essays- (LVI) ‘Of Judicature’)

(b) Christopher Palles (d.1921), Chief Baron of the Exchequer in Ireland, has placed a notice that would always be before his eyes. It read: ‘A judge should keep his mouth shut and his mind open: when he opens his mouth he shuts his mind’.

(c) The American judge, Justice Cardozo writes in his book ‘The Nature of the Judicial Process: ’The judge, even when he is free, is still not wholly free. …He is not a knight errant, roaming at will in the pursuit of his own ideal of beauty or goodness….He is not to yield to spasmodic sentiment, to vague and unregulated benevolence’.

(d) Justice Thomas, a judge of the Supreme Court of Queensland, Australia, in his book ‘Judicial Ethics’ explains the reasons as why the judges shall have a special and higher code of conduct: ‘We form a particular group in the community. We comprise a select part of a honourable profession. We are entrusted, day after day, with the exercise of considerable power. Its exercise has dramatic effects upon the lives and fortunes of those who come before us…. They will not wish such power to be reposed in anyone whose honesty, ability or personal standards are questionable. It is necessary for the continuity of the system of law as we know it, that there be standards of conduct, both in and out of court, which are designed to maintain confidence in those expectations’.

(e) The Bangalore Principles of Judicial Conduct were endorsed at the 59th session of the United Nations Human Rights Commission in 2003. The principles are six ‘values’ to establish standards for ethical conduct of judges’. It prescribes: (i) Value 3: ‘Integrity is essential to the proper discharge of the judicial office. A judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer. The behaviour and conduct of a judge must reaffirm the people’s faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done’; (ii) Value 4: ‘Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge. A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities. As a subject of constant public scrutiny, a judge must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular, a judge shall conduct himself or herself in a way that is consistent with the dignity of the judicial office’.

(f) International Criminal Court has formulated a Code of Judicial Ethics 2005. Its Article 5 says ‘Judges shall conduct themselves with probity and integrity in accordance with their office, thereby enhancing public confidence in the judiciary. Its Article 8 says that in conducting judicial proceedings, judges shall maintain order, act in accordance with commonly accepted decorum, remain patient and courteous towards all participants and members of the public present and require them to act likewise’.

(g) UK Guide to Judicial Conduct, 2013 declares: ‘A judge’s conduct in court should uphold the status of judicial office, the commitment made in the judicial oath and the confidence of litigants in particular and the public in general. The judge should seek to be courteous, patient, tolerant and punctual and should respect the dignity of all’; ‘A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities’.

(To be continued)

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