IN-SERVICE TRAINING FOR CIVIL JUDGES AND JUDICIAL MAGISTRATES

IN-SERVICE TRAINING FOR CIVIL JUDGES IN-SERVICE TRAINING FOR CIVIL JUDGES AND JUDICIAL MAGISTRATES By Mr. Justice Salem Akhtar It is privilege to be invited to address the Civil Judges and Judicial Magistrates who are the backbone of our judicial system. From time immemorial institution of judiciary, in one form or the other, has played important role in the development of civilization, culture and progress. If you glance through the history you will find peace, progress and prosperity in nations and countries which have followed the path of justice. By nature human is just. Justice creates balance in society, protects the rights of the poor and oppressed class, brings peace and stability, law and order, enforces rule of law and plays critical role in establishing democracy. Justice has attained such an unique position that right of access to justice is a fundamental right guaranteed by the Constitution which is enforced and protected by the Courts. When I talk of justice it has particular reference to the role of judiciary at every level constitutionally and legally empowered to do justice. But justice in generic sense denotes, an attitude and way of life, a culture and civilization, where every man has to do justice which starts from home, family, neighbours and spreads to the entire society, trade, commerce, business, profession and every walk of life. Without a sense of justice civil society cannot maintain equilibrium, equity, fraternity, honesty, integrity, freedom and dignity. From eternity justice has been the corner stone of a peaceful, just and balanced society. Coming to the judiciary of Pakistan, I will first refer to the constitutional provisions to demonstrate the exalted position it occupies in the polity of nation. By judiciary I mean the structure of judicial system which comprises of the subordinate and superior judiciary both. I rank subordinate judiciary as the basic foundation of the judicial structure. Our Constitution provides for trichotomy of power viz. legislature, executive and judiciary. These are three main pillars on which rests the edifice of the Constitution. Each organ is separate and independent from the other having well-defined functions and jurisdictions. No organ is superior to the other. Legislature frames the law, executive administers it, while judiciary interprets the law. Amongst all these organs judiciary plays the most important role in not only interpreting the Constitution and law but decides the conflicting rights, claims and disputes among citizen and citizen, Government and citizen and Government and Government. The guarantees under the Constitution viz. the fundamental rights are protected and enforced by the Courts. In a set-up where the Constitution is based on trichotomy of power, judiciary enjoys a unique and supreme position within the framework of the Constitution as it creates balance amongst various organs of the State and also checks the excessive and arbitrary exercise of power by the executive and the legislature. Judiciary has been termed as a watchdog and sentinel of the rights of the people and the custodian of the Constitution. It has been described as "The Safety Valve" or the "Balance Wheel" of the Constitution. The jurisdiction and parameters for exercise of power by all the three organs have been mentioned in definite terms in the Constitution. No organ is permitted to encroach upon the authority of another and the judiciary by virtue of its power to interpret the Constitution and law keeps legislature and executive within the spheres and bounds of Constitution. [1] The judiciary holding such exalted position must be independent and separate from the Executive Art.175 of the Constitution proclaims that there shall be a Supreme Court of Pakistan, a High Court of each Province and such other Courts as may be established by law. Further, no Court shall have any jurisdiction as is or may be conferred on it by the Constitution or by or under any law. And finally cl. (3) provides that the judiciary shall be separated progressively from the executive within fourteen years from the promulgation of the Constitution (14-8-1973)[2]. But ultimately for the first time by judgment of the Full Bench of High Court of Sindh dated 24-4-1989, both the superior and subordinate judiciary were separated from the Executive and made independent [3]. On appeal filed by the Federal Government, the Supreme Court confirmed the said judgment with modification and made it applicable to Sindh and Punjab while financial dependency was eliminated in all the Provinces [4]. Before this historic judgment of the Sindh High Court, in the year 1952 Justice (Rtd.) Din Muhammad who was the Governor of Sindh converted all posts of City Magistrates, Additional City Magistrates and Resident Magistrates in Sindh into the post of Civil Judge and 1st class Magistrates and brought incumbents in the cadre of Civil Judge and placed them under the direct control of the District Judges and High Court. Thereafter in pursuance of Hamoodur Rahman's Law Reforms Commission (1967 1970), Law Reforms Ordinance XII of 1972 was promulgated on 14-4-1972 providing for amendments in Code of Criminal Procedure, Pakistan Penal Code, Evidence Act and creation of two categories of Magistrates, viz. Special Judicial Magistrates and Executive Magistrates. The Judicial Magistrates were subordinate to the Sessions Judge and the executive Magistrates were subordinate to the District Magistrate. But unfortunately in Sindh Provisions of Ordinance XII of 1972 were not enforced. However, the Federal Government Promulgated Ordinance 14 of 1975 which ultimately converted into Law Reform (Amendment) Act, 1976 applicable to whole of Pakistan. It provided that all Magistrates shall be deemed to be subordinate to the Sessions Judge for purposes of subsection (1-C) of section 528 of Code of Criminal Procedure. After the promulgation of Law Reform Ordinance 1975 on 23-12-1 075 the Government of Sindh issued notification under subsection (2) of section 1 of Ordinance XII of 1972 which inter alia empowered the Sessions Judges to exercise revisional jurisdiction over the Magistrates. But the provision requiring the establishment of judicial and Executive Magistrates separately was not enforced till the judgment in Sharaf Faridi's case. It is well-settled that separation and independence of judiciary are the corner stones of rule of law. According to Dicey "the force of public opinion", "ingenious balancing of political powers" and the Courts having power to adjudicate upon the constitutionality of legislative acts and declare them as void "if they are inconsistent with the later or the spirit of the Constitution" are the "safeguards against unconstitutional legislation", illegal, without, jurisdiction and mala fide actions. The force of public opinion except on rare occasion has remained ineffective and unconcerned. It was only judiciary which besides adjudicating civil and criminal matters has upheld all the freedoms, equality, tolerance and social justice. Such a judiciary is manned, controlled and regulated by a Judge. Therefore, a Judge should possess all the qualities and attributes which makes this position respectable, honourable and creates public trust and confidence in him. It is for the Judge to first prepare himself morally and mentally capable to hold the post. No one is a born Judge but the traditions, learning, knowledge, humility, courage and the resolve to do justice impartially, independently and without fear or favour, affection or ill-will make a Judge. Islamic history is full of golden rules, and traditions of justice impartiality and independence which lay down that in the administration of justice no distinction should be made between the rich and the poor, ruler and subject and noble and ignoble. In this regard the letters of Hazrat Umar (RA) and Hazrat Ali (RA) have been quoted frequently. I will refer only a few principles [6]:-‑ (1) First and foremost is to select and appoint people of excellent character, superior caliber and meritorious record. (2) Judge should listen patiently and diligently. Ponder over the question then announce the judgment. (3) Treat the people equally while doing justice in court so that justice should be seen to be done. (4) Implement the order promptly because order without implementation is a farce. (5) Abundance of litigation and complexity of cases should not make Judges lose their heart. (6) They should not be corrupt, covetous or greedy. (7) They must attach greatest importance to reasoning, arguments and proof. (8) Pay the Judge, handsomely so that their needs are satisfied and they are not required to beg or borrow or resort to corruption. Recently the Supreme Judicial Council framed the procedure of inquiry against Judges of the apex and High Courts for their removal on misconduct. Meanwhile the National Judicial Policy Making Committee (NJPMC) approved additional code of conduct for judicial officer which required them[7] : - (1) 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. (2) The officer should not show any fear or favour to any party before him and their lawyers both in his judgment and conduct. (3) He should avoid mixing up with people, roaming in hotels, markets and streets except in dire need and should avoid rage. (4) He should have command and control over the proceedings in the Court and should be consistent in his judgment. (5) He should also be courteous and polite, but not weak towards the litigants and their lawyers and should maintain decorum of the court. (6) He should always endeavour to decide measures to ensure speedy justice and have effective control over the staff of his court without being rude, rough or humiliating. (7) The judicial officer should be punctual while taking or leaving his seat and should be dressed in prescribed uniform and seated , in a dignified manner but not so as to look a proud man. (8) 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 case of ex parte proceedings. (9) He should 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. Judiciary is the need of the society. Judges are, the persons required to administer justice and maintain balance, safeguard the rights of the people and protect the oppressed. But the adversary system of justice and clinging to the complex legal technicalities have not only caused delay in decision but with the passage of time, shaken the trust and confidence of the civil society. Corruption, delay, backlogs, inefficiency and lack of integrity and ability in the judicial set-up are the common questions raised in all types of forums and platforms. Blaming and holding entire judiciary the culprit though not wholly true is partly correct. These problems with difference of degrees, have afflicted world over but the developing and under-developed countries are the main victims. Asian Jurist Conference recently held at Manila which was attended by 300 delegates including Chief Justice of superior Courts from 45 countries including Chief Justice of Pakistan called for the independent, accountable and effective judiciaries and declared:-‑ "We reaffirm the core principles [and] are mindful of the power of transparency in engendering public trust and confidence in the judiciary, and are cognizant too that unleashing the power of technology to enhance the functioning of judicial system can reinforce transparency accountability, efficiency, effectiveness, integrity and access"[8]. Such declarations at international forums are regularly made but no effective headway seems to have been made in our country. Unless we resolve to be honest, independent, accountable, efficient and transparent, it will be difficult to achieve trust and confidence, transparency and access. Although Judges are appointed by the Executive after due Consultation, but full security and guarantees have been provided to the Judges of superior Court. But what about the subordinate judiciary where majority of cases are adjudicated. In my view after the judgment in Sharaf Faridi's case the situation has radically changed and the subordinate judiciary is under the control and supervision of the High Court. The relationship of master and servant does not exist between the Government and Judges. Art.202 provides that a High Court may make rules regulating the practice and procedure of the High Court or any Court subordinate to it. Further under Art.203 each High Court shall supervise and control all Courts subordinate to it. Thus all subordinate Courts are under, the control and supervision of the High Court. This includes the power to control all subordinate Courts judicially and administratively. Art.203 relates more to administrative aspect than the judicial aspect. The supervision and control rested in the High Court under Art.203 of the Constitution. Such supervision and control keeping in view Art.175 is exclusive in nature and effective in operation. It comprehends the administrative powers to the working of the subordinate Courts and disciplinary jurisdiction over the subordinate judicial