Let Your Own Discretion Be Your Tutor

LET YOUR OWN DISCRETION BE YOUR TUTOR LET YOUR OWN DISCRETION BE YOUR TUTOR By Ch. Mahmood Ahmad, Advocate, Lahore High Court, Jhelum Discretion in common parlance means prudence, freedom to act according to one's own judgment, to do what seems right or best. It may also mean freedom or authority to make judgments and to act as one sees fit, freedom to decide for oneself what should be done. (Oxford Advanced Learners Dictionary of Current English; Collin's Concise Dictionary Plus). In legal jargon, it has, inter alia, somewhat following connotation: "Discretio est scire (or Discerneri) per legem quid sit just um". Discretion is to know through the law what is just. Discretion, when applied to a Court of Justice, means sound discretion guided by law. It must be governed by; rules, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular. (Per Lord Mansfield, R. v. Wilkes 2 Buff. 25). When an Act directs the Judge or Magistrate to proceed in the exercise of his discretion it does not mean that he is to act according to his sweet will and pleasure, or caprice or mere fancy or private opinion, but according to the rules of reason and law and justice. (Rookes Case 5 Rep. 99). A loose and unfettered discretion is likely to be the refuge of vagueness in decision, and the harbour of half formed thought. (Per Lord Penzance, Morgan v. Morgan, L.R.I. P & D 644). Matters which come before a Court of Justice are generally of three classes:‑‑ (1) Matters are question of law‑‑‑that is to say, all that are determined by authoritative legal principles. (2) Matters and questions of judicial discretion‑‑‑that is to say all matters and questions as to what is right, just, equitable, or reasonable, except so far as determined by law. (3) Matters and questions of fact‑‑that is to say all other matters and questions whatever. In matters of the first kind, the duty of the Court is to ascertain the rule of law and to decide in accordance with it. In matters of the second kind, its duty is to exercise its moral judgment, in order to ascertain the right and justice of the case. The question as to what is the just and reasonable punishment to be imposed on an accused person for his offence is a question of right or judicial discretion to be determined in accordance with the moral judgment of the Court. In matters of the third kind, its duty is to exercise its intellectual judgment on the evidence submitted to it in order to ascertain the truth. There are many cases in which the freedom of judicial discretion on any point is not wholly taken away by a fixed rule of law, but it is merely restrained and limited by such a rule, and is left to operate within the restricted sphere so allowed to it. In such a case the question to be determined by; the Court is one of law so far as the law goes and one of fact or judicial discretion as to the rest. The proper penalty for an offence is usually a question of this nature. The law imposes a fixed maximum but leaves the discretion of the Court to operate within the limits so fixed. So, in many cases judicial discretion, instead of being excluded is merely limited and controlled by rules of law which determine the general considerations which are to be taken into account as relevant and material in the exercise of this discretion. The discretion of the Court has not been taken away, but it must be exercised within the limits, in the manner and upon the considerations thus authoritatively indicated by law. (Salmond on Jurisprudence). There may well be School of Thought disposed to accepting, polemically though that: "We must not make a scare crow of the Law. Setting it up to fear the birds of prey, And let it keep one shape till custom make Their perch and not their terror, " (Shakespeare; Measure For Measure) But Judges are not at liberty to add to or take from or modify the letter of law, simply because they have reason to believe that the true sententia legis is not completely or correctly expressed by it. The Court must be content to accept the litera legis as the exclusive and conclusive evidence of the sententia legis. Any other course is violative of the principles of interpretation of laws and is likely to breed judicial mavericks who in an anxiety to do substantial justice and claim kudos would, unwittingly, be doing more harm than good to the cause of justice. It can also be argued that necessity has no law. ("Necessitas non habet legem".) "Necessity, said Lord Bacon is of three sorts; necessity of conversation of life; necessity of obedience and necessity of the act of God or a stranger". "Necessitas publica major est quam privata": Public necessity is greater than private. Public welfare is of greater importance that private necessity; "Salus populi est suprema lex": The safety of the people is the supreme law. The maxim is based on the implied assent of every member of society, that his own individual welfare shall, in cases of necessity, yield to that of the community. Every man when he enters into society, gives up, says Blackstone, a part of his natural liberty in consideration of receiving the advantages of mutual commerce, and obliges himself to conform to those laws, which the community has thought proper to establish. Of maxims, Bacon says, "They are general dictates of reason running through the law, and constitute its ballast". "So far, of course, as the maxims embody fundamental conceptions of justice, and are of the essence of the English Law, they are valid and require to be reckoned for all time. But the wit of the jurist has occasionally devised axiom suitable only to his own epoch of legal development, and consequently, bound to become obsolete. (The Law Times, 5th October, 1901, p.505). Incidentally, the application of the maxims ibid. by our superior judiciary in handing down some monumental judgments in the short albeit chequered Constitutional history of the country is viewed with circumspection both by "the laity" and those in "Holy Orders". The ineluctable conclusion is, that though discretion is a necessary concomitant of law in the administration of justice, yet time has proved that more often than not man has erred in its exercise. Perhaps, the first instance of the misuse of discretion in the history of mankind is when Adam chose to eat the fruit of that forbidden tree. In Milton's words: "Of Man's first disobedience, and the fruit of that forbidden tree, whose mortal taste. Brought death into the world, and all our woe with loss of Eden... In defence, he says: "She gave him of that fair enticing fruit with liberal hand; he scrupled not to eat Against his better knowledge; not deceived, But fondly overcome with female charm. " It will not be wrong to assume that vesting of discretion in man and its misuse is as old as mankind. It is, therefore, all the more important that the lesser mortals who have strong proclivity to follow "the Old Adam" are given as little discretionary powers as possible. One tends to think and think inexorably that a possible solution to the unsatisfactory and not too happy a state of affairs in the country's lower judiciary lies in the drastic clipping of its discretion. In any case, there is an urgent need of counselling the subordinate Judges to tutor their discretion so as to restore the quickly effervescing public faith in the country's judicial system. It is axiomatic to say that every Muslim, Qazi or not, must endeavour with unflinching faith, to seek complete and authoritative guidance from the Holy Qur'an (the fount of knowledge) and the glorious Sunnah of the Holy Prophet (Peace be upon him)‑‑Beacon light for the straying soul. Last but not least: "Praise be to Allah. The Cherisher and Sustainer of the Worlds; Most Gracious, Most Merciful; Master of the Day of Judgement Thee do we worship, And thine aid we seek. Show us the straight way; The way of those on whom Thou hast bestowed Thy Grace, Thou whose "(portion) is not wrath, And who go not astray (The Holy Qur'an Text, Translation and Commentary by Abdullah Yousaf Ali; New Edition, 1983. MR. JUSTICE SH. IJAZ NISAR, JUDGE, SUPREME COURT OF PAKISTAN Mr. Justice Sh. Ijaz Nisar, was born on 15th June, 1935 at Sahiwal; passed Matriculation Examination from Government High School, Sahiwal; did Graduation from Government College, Sahiwal; obtained Degree of Law from University of the Punjab, Lahore; started legal practice at Sahiwal in 1958; appointed as Public Prosecutor in 1963; served in that capacity at Sheikhupura, Gujranwala and D.G. Khan; directly appointed as District and Sessions Judge in 1968, served as District and Sessions Judge at D. G. Khan, Sargodha, Rawalpindi and Lahore; served as Special Judge Banking at Lahore; Chairman, Drug Court Punjab and N.‑W.F.P.; Judge, Special Court for Terrorist Activities; Judge Special Court for Speedy Trials; appointed as Law Secretary to Punjab Government in 1981; appointed as Judge of the Lahore High Court in July, 1983; served as Chairman, Punjab Local Councils Election Authority; successfully conducted local bodies elections in 1991; served as Chairman, Provincial Review Board, Member of Law Reforms Committee; appointed as Acting Chief Justice of High Court on four different occasions. A widely travelled person having represented Pakistan at various Conferences and Courses held in UK, USA and Japan. Mr. Justice Sh. Ijaz Nisar belongs to a family of lawyers. His late father Sh. Nisar Ahmad was an eminent lawyer of Punjab having twice elected as Member, Bar Council. He was founder of Muslim League in District Sahiwal and had represented the case of Pakistan before the Boundary Commission and had also represented Pakistan in various Conferences on Cooperative. Justice Sh. Ijaz Nisar's uncle Sh. Maqbool Ahmad was the President of Lahore High Court Bar Association, his first cousin Sh. Khurshid Ahmad was also a very active member of Lahore High Court Bar Association and was also Federal Minister for Law in the Ayub's regime. Many of his family members are still actively practising at the Bar. SH. RIAZ AHMED, CHIEF JUSTICE,LAHORE HIGH COURT Sh. Riaz Ahmad son of late Sh. Manzoor Ahmad, Advocate Quetta was born on 9th of March, 1938. He was enrolled as pleader on 16‑8‑1960 and as Advocate High Court on 25‑9‑1962. She Riaz Ahmad was enrolled as Advocate, Supreme Court of Pakistan in February, 1968. Sh. Riaz Ahmad practised at the Bar for 14 years till appointment as an Assistant Advocate‑General Punjab in 1974; during the practice at the Bar worked as Legal Advisor to the Standard Bank West Pakistan, Family Planning Department, University of the Punjab; Taken Over Industries i.e., Ravi Rayon, Ittehad Chemicals and WAPDA etc. He was brought on the State list in 1963 to represent the Province of the West Pakistan in the High Court and the Supreme Court of Pakistan; conducted many cases on the Constitutional, Criminal as well as Civil sides of the Law. He was part time Lecturer in the Punjab University Law College Lahore from 1967 to 1974. Sh. Riaz Ahmad was appointed as an Assistant Advocate‑General to the Government of Punjab on 24‑1‑1974, and with the shifting of the Supreme Court to Rawalpindi was transferred to Rawalpindi. He worked exclusively in the Supreme Court of Pakistan from November, 1974 to May 1980; represented not only Punjab but other Provinces and the Federal Government before the Supreme Court; conducted many important cases of Constitutional importance in the Supreme Court of Pakistan. He worked as Member of the Research Committee to assist the Attorney‑General of Pakistan for the preparation of Reference to be filed in the Supreme Court of Pakistan against the National Awami Party in 1975‑76. Sh. Riaz Ahmad was appointed as Advocate‑General, Punjab on 27th of May, 1980 i.e., the Principal Law Officer of the Government of Punjab; worked in the said capacity till 3rd of March, 1984. Sh. Riaz Ahmad was appointed as a Judge of the Lahore High Court on 3rd of March, 1984; he was Member of the Punjab University Law College Committee since 1980 and was appointed as a Chairman, Board of Governors of the Quaid‑e‑Azam Law College; as a Judge of the Lahore High Court Sh. Riaz Ahmad was appointed as Tribunal to hold an enquiry into the Badshahi Mosque incident at Lahore. He was nominated at Bahawalpur Bench of the Lahore High Court for one year from 1985‑86. He held the Office of the Chairman of Punjab Bar Council from 1980 to 1984. He was Chairman of the Enrolment Committee of Punjab Bar Council for enroling the Advocates; Member of the Committee constituted by the Government of Punjab to run the affairs of Islamia College Civil Lines, Lahore; Member of the Syndicate Agriculture University, Faisalabad; Member of the Judicial Commission to probe into the causes of the air crash of C‑130 Aircraft at Bahawalpur wherein General Zia‑ul‑Haq and others were killed; Member of the Election Commission of Pakistan; Member of the Executive Council of the Allama Iqbal Open University, Islamabad. She Riaz Ahmad was appointed Secretary Law, Justice and Parliamentary Affairs of the Federal Government in December, 1993. He was appointed as ad hoc Judge of the Supreme Court of Pakistan in June, 1995 and assumed duties as senior Judge of the Lahore High Court in 1996 and worked as Acting Chief Justice of the Lahore High Court from 8th of April, 1997 till 22nd of April, 1997. He has been appointed as the Chief Justice Lahore High Court, Lahore on 30th of May, 1997. WELCOME ADDRESS BY MR. JUSTICE MUHAMMAD ARIF ON THE EVE OF FULL COURT REFERENCE IN HONOUR OF MR. JUSTICE SHEIKH RIAZ AHMED, CHIEF JUSTICE, LAHORE HIGH COURT Hon'ble Chief Justice, Learned brothers, Learned Attorney‑General for Pakistan, Learned Advocate‑General Punjab, President, Supreme Court Bar Association, Vice‑Chairman, Punjab Bar Council; President, High Court Bar Association, Lahore, President, High Court Bar Association, Multan, President, High Court Bar Association, Bahawalpur, President, High Court Bar Association, Rawalpindi, Revered members of the Bar, Ladies and gentlemen! I am extremely grateful to providence for providing me this opportunity to welcome Mr. Justice Sheikh Riaz Ahmed on his assumption of high office. of Chief Justice of Lahore High Court. In fact, I only join all other colleagues in this Court in welcoming him as such, today. 2. My association with Justice Sheikh Riaz Ahmed dates hack to early sixties and, saying it differently, eversince his enrolment as a Pleader in the erstwhile High Court of West Pakistan. I need not repeat his bio‑data and curriculum vitae as the same have been recounted admirably by those who have preceded me. His rich experience in all the fields of law as a lawyer, Principal Law Officer of the Province and Chairman, Punjab Bar Council, Federal Law Secretary and a Judge of this Court as also ad hoc Judge, Supreme Court of Pakistan, before the judgment of the Supreme Court of Pakistan in Judges' case, will stand him in good stead in attending to his current responsibilities. 3. Normally, such occasions have been prefaced with the word 'formal'; in the past. I intend to draw your attention to, among others, the problems with which both, this Court and the legal fraternity, are beset. The pendency of cases at the Principal Seat and the Benches has attained gigantic proportion. The litigants in general and the lawyers community in particular, have legitimate complaints to make against the delayed resolution of the cases by the judicial wing of the Statecraft. 4. Sir, the entire lot of powers stand divided betwixt Legislature, Executive and Judicial wings in any given dispensation in a written Constitution. The subjection of all concerned, in the matter of exercise of their powers, under the Constitution, of necessity, makes the Judicial wing of much greater importance in seeing to it that the first two organs remain within the confines of their jurisdiction in accord therewith. The study of a Constitution of any country is nothing more or less than the study of the constraints placed under the law on the exercise of their respective powers by the members of the Legislature, the Executive and the Judiciary. In a Parliamentary form of Government, the law makers/Legislature and the Executive organ of the State have an edge‑over the personnel in a Presidential system when it is noticed that the requirements of the Executive wing can be got fulfilled easily by making laws or by introducing amendments in the existing laws, from the competent Legislature. The concentration of the powers of these two disciplines in a discernible group/groups in the Statecraft, can present problems of various magnitude for the purposes of their resolution by the Judicial wing. The increase in State‑activity, has given rise to complex‑problems to be tackled and resolved strictly in accord with the Constitution and the law. That litigation has increased in the past about half a century, is stating the too obvious. The increase in litigation and corresponding increase in the number of membership of the legal profession, at all levels in the country, has brought to the fore the need for having greater number of persons in the Judiciary, at all levels. 5. Sir, you are already cognizant of the enormity of the situation and the problem to that extent can be attended to by issuing appropriate directions to the lower judiciary and sorting out the cases in this Court, in a chronological order. I assure you that any remedial measures to be initiated by you with a view to completely and effectively doing away with the backlog, will have our fullest support. The cases on the civil, criminal, company, taxation, rehabilitation and other facets or branches of the law can be assigned to appropriate Benches to be constituted at the Principal Seat and the Benches. It is heartening to note that you have revised the roster of sittings commencing 2nd of June, 1997. Three Division Benches at the Principal Seat each for LPAs, ICAs and RFAs and Murder References and Criminal Appeals as also one Division Bench for 'Special Court Appeals' in addition to 32‑Single Benches, will go a long way in resolution of the causes both in the category of pending matters and new institutions. Constitution of appropriate Benches for Company, Taxation and Customs‑causes may also be gone ahead to complete the picture at the Principal Seat and the Benches. 6. I am taking this opportunity to suggest the following categories of cases to be allocated to all the colleagues at the Principal Seat and the Benches on the criminal side and civil side, respectively:‑‑ A‑‑Criminal Side: (i) Criminal miscellaneous applications seeking suspension of sentences in pending appeals, only in those matters where they fall for resolution separately from the main causes. (ii) All criminal miscellaneous applications seeking bail for the accused. (iii) All Constitution petitions seeking registration of cases by the concerned S.H.Os. (iv) All habeas corpus petitions. (v) All Constitution petitions asking for the issuance of a writ/order in the nature of prohibition or to quash criminal cases. B‑‑Civil Side: (i) Civil revisions questioning the grant or otherwise of interim relief to litigants. (ii) Transfer applications in relation to family matters and civil suits. (iii) Civil revisions in cases in which the appeals under section 96, C.P.C. have been decided by the appellate forum. (iv) Petitions under Article 199 of the Constitution in relation to family matters, rent causes, rehabilitation cases and cases pertaining to civil servants. (v) As regards the service causes, it may be of some help to obtain relevant information in that regard from the office of the Registrar and then proceed with fixing an outer‑limit, preferably of 90 days, to resolve them, so that the litigants concerned are accorded the benefit of their litigation by promotion etc. 7. Sir, you have been associated with the pre‑service and in service training of members of lower judiciary both at the NIPA, Lahore and the Federal Judicial Service Academy, Islamabad. I have an inkling that your predecessors had made some progress in the matter of establishing a Provincial Judicial Officers Training Academy at Lahore and it would be worth your while, to finalize the said proposal with a view to achieving the desired results. 8. Before concluding I on my own behalf and on behalf of my brother -judges assure you of our full cooperation in the discharge of your duties as Chief Justice. We pray to Almighty God that He may grant you the strength, courage and wisdom to perform your duties as Chief Justice in the most befitting manner. Aameen!