Educating Judges

EDUCATING JUDGES* <!--[if gte mso 10]> EDUCATING JUDGES* By Mr. Justice Mian Saqib Nisar, Judge, Lahore High Court Litigation is a curse for everyone except those who, for their ulterior motives, illegal and unscrupulous gains, exploit and entrap by design and manipulation, the weak, the downtrodden; the innocent and law abiding people of the society. By nurturing a culture based on conflict, hate, intolerance, intimidation and violence; it erodes the atmosphere of courtesy, civility, harmony and affability in the society. In my view, litigation is a social evil akin to the ailment of a human body treatable in a clinic or hospital by an able doctor. The only difference is that the malady of litigation is remedied in a court of law by a competent and upright Judge. However, the expense incurred, the valuable time lost, the pain and agony suffered before its conclusion, leaves hideous marks. Litigation, as far as possible, need eradication from our society. This object can only be achieved through well-trained and honest judges, having professional excellence, necessary for providing expeditious justice. * Paper read at Workshop of Federal Judicial Academy at Islamabad on 27-10-2007 As the dispute between parties involved in a matter must be settled by the "Judges" with a conscious application of mind, the judicial limb of the State assumes immense importance. That is why, I have selected the topic "Educating Judges" for today's discourse. I also believe that this topic comprehensively covers the main object of this workshop and is most appropriate keeping in view the presence of the worthy audience. The purpose to hold this workshop revolves around the concept of "Administration of Justice" or the "Dispensation of Justice", a task, which the Judges have to perform. Needless to say that this role of the judiciary is pivotal or fundamental to the very structure upon which a State is founded. In fact, without understanding the importance and the role of the judiciary, a State can neither be perceived, nor it is possible to dilate upon the topic. Therefore, to highlight the constitutional position of the "judicature" at different levels of its hierarchy, I find it appropriate to first mention about the power of judicial review of the Superior Courts. The concept of "Administration of Justice" unquestionably is dependent upon the proper understanding and the application of law on part of the Judges and the management of the process of litigation before the courts, resulting into the final resolution of a dispute. The above underscores the importance of the process of learning for the Judges and/or the acquisition of requisite knowledge by them. I have no intention to burden this paper with the extensive references from history or law, but shall simply mention that Pakistan is one of the countries of the world, which is blessed with a written Constitution, the Supreme Law/Of the land. Notwithstanding the long intervals, during which this sacred legal instrument, for one reason or the other, remained inoperative, it is questionable, whether it was followed and adhered to in its letter and spirit, even during the times it was in force--there is no denying of the fact that the Constitution of Pakistan has set the foundational norms upon which the structure of the State has rested. It outlines the mode of creation, the functions and the legislative competence of the legislature, a State pillar responsible for making laws of the land; it provides guideline for the formation, the authority and powers of the executive pillar of the State, meant for its governance; and above all, by virtue of Article 175 of the Constitution, it provides the basis for the establishment and the jurisdiction of various courts in Pakistan, collectively called the "Judicature". At its superior level, this branch of the State has a special and peculiar position. It is exclusively empowered, rather assigned the duty, to adjudge the legislative and administrative actions of the other two organs of the State under its extraordinary jurisdiction of "Judicial Review". On this account, the judicial arm of the State not only acts as an arbiter between the State and the Citizens in the ordinary course, but also keeps a check regarding any transgression of authority by the other organs of the State in the performance of their functions. It includes the duty of the Superior Judiciary to examine the constitutionality of a law, whether it is intra vires or ultra vires of the Constitution. In Judicial Review, the superior judiciary can also determine the validity of the administrative actions of the State functionaries challenged before it. Be that as it may, the basic or the core function of the judiciary, as a whole, is to decide a lis before it by applying the correct law to the facts of the case. It acts as a watchdog to ensure that the other State organs find no opportunity to cross their prescribed limits. Therefore, on account of the power of Judicial Review, which is inherent and also constitutionally recognized, the Superior Judiciary in Pakistan has a special and extraordinary position, as mentioned earlier. Besides, under the Constitution of Pakistan, the judiciary, as a whole, and the superior courts, in particular, are made the custodian of the fundamental rights enshrined by the Constitution. This has enhanced the position of the Judicature. In fact, it has saddled the judiciary with the responsibility and the obligation to protect and enforce these rights. To elucidate the above, it may be mentioned that the Constitution of Pakistan which is the source of fundamental rights conferred upon the citizens of the country, and in certain cases upon the persons, has clothed an extraordinary jurisdiction upon the Superior Judiciary to enforce such rights, if their violation is voiced by an aggrieved person. These fundamental rights are, unquestionably; most sacred. While examining the nature of these rights and the jurisdiction of the court for the enforcement thereof, it has been held in one of my judgments, reported as PLD 2004 Lahore 376:‑ "11. The fundamental rights are primordial in nature, which are imperative and essential for the very existence, development, progress, prosperity of the citizens of the State, and are necessary for the growth and expression of their personalities. These are basic in character because, they enable a citizen to chalk out his own life in the manner he likes the best; these are the rights which, a citizen possesses as a creature of the nature, and are natural in form. However, for the precise identification, extent, guarantee and the enjoyment of such rights in an ordered democratic society, such as ours; the whole nation entered into a contract and by a unanimous resolution endorsed the rights in the Constitution of 1973. On account of the above, the political powers of the State stood security for the sanctity and inviolability of these rights; enabling the citizen to successfully resist the political authority in the State and assert his rights in the case of breach. The provision's of Article 4 of the Constitution, has made these rights inviolable and inalienable by conferring a right upon every individual to be dealt with in accordance with law and by specifically providing that "No person shall be prevented from or be hindered in doing that which is not prohibited by law. 12. It has been made the duty of the State to protect, respect, safeguard, ensure and to facilitate the exercise of these rights. And in case of any violation, and encroachment thereof, the judiciary, specially the superior Court of the Country, by means of Articles 199(2) and 184(4), have been made responsible to provide remedy to those citizens, whose rights have been encroached by the State, or its functionaries." From the letter, the spirit and the scheme of the Constitution, it is clear that for the purposes of the enforcement of fundamental rights, the High Courts of the Provinces in terms of Article 199 1(c), have absolute authority to act and this power stands reinforced by sub Article 2 of Article 199, which provides:‑ "Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part-II shall not be abridged. Along with the High Courts, a concurrent jurisdiction has been conferred on the Supreme Court of Pakistan under Article 184(3) through which it can exercise its original jurisdiction for the enforcement of fundamental rights, where the violation thereof is complained and the matter is of public importance. Further, Article 8 of the Constitution has not only declared, any existing law inconsistent with the fundamental rights to be void, but has also prohibited the State from making any law which is contrary to or abridges such rights. This briefly, elucidates the importance of the judicial limb of the State. To avoid any misconception or misgiving, it can be clearly stated that the enforcement of the fundamental rights is not the power or the duty of the Superior Judiciary, alone. Every Court of the country, even if it is a Civil Judge (Class-III) has, in appropriate proceedings before it, the full and absolute authority to enforce such rights. Even the Administrative Tribunals, exercising the powers of quasi-judicial nature, while adjudicating and determining the rights of the litigants before them are bound to enforce these fundamental rights. Apart from the fundamental rights, the rights available to a person under the general, the special or the common law, if infringed by another person or by the State, can only be enforced and protected through the process of law by the Courts. Fortunately, almost all the civil rights (which are numerous) are conferred and defined by some statute. These include the rights in respect of the, property of a person, his legal status, religion, reputation, privacy, inheritance and marriage, etc. then there are rights under the law of torts, the right to seek specific relief under the Statute, and the right to claim damages for the injury to the body or the property. Also, there are special rights conferred by special laws to be determined by the special forums. These include the rights of an employer and the employee under the Labour or Service Law, the rights under the Tax Law, the rights of the Customer and the Banking Companies under the Special Statute, the rights emanating from the Monopoly Law, the Company Law, the Press and Publication Law, etc. All these rights are enforceable and require determination and resolution by the Courts of general jurisdiction or special jurisdiction, as the case may be. Regarding "Criminal Dispensation of Justice", again, no person accused of a criminal charge can be punished until his act falls within the offence as defined by law and after a fair trial by the court of competent jurisdiction. Except some cases pertaining to the rule of "Strict Liability", which in recent years, has been introduced to the Criminal Jurisprudence in the Anti-Smuggling Laws and the laws pertaining to the white-collar crimes, the fundamental rule to be adhered to by the courts in convicting an accused is to presume his innocence until proved guilty. Thus, taking into account the role of the judiciary as a whole, whether exercising its power of judicial review, or acting for the enforcement of fundamental rights or deciding the ordinary civil or criminal matter, the importance of the judiciary undoubtedly, is very special and extraordinary. For any nation of the world, it should be a matter of great satisfaction and pride that its Judiciary is providing justice to its people by performing its function honestly and diligently. It maybe expedient to mention here that many civilized societies, with the development of their own mechanism, have endeavoured to curtail the litigation to quite an extent. In this behalf, they have successfully adopted modern techniques such as, different modes of Arbitration or reconciliation, negotiations and Alternate Dispute Resolution (ADR). Unfortunately in our part of the world, we have not achieved much fruitful results. It may be due to the failure of our legislatures to provide appropriate and up-to-date laws, or the excessive use or misuse of power by the executive or the inaction of the judiciary. But, it is painful to note that trivial matters like matrimonial issues, the rent disputes, the small cause discords and the disputes falling within the jurisdiction of conciliation forum; which should ordinarily settle at a certain level, invariably, reach the Superior Courts, even upto the apex court. An eviction case under the Rent Laws, or of a case for the dissolution of marriage or for the recovery of dower and dowry usually takes years for the decision, and the loser still feels dissatisfied, having no trust in the fairness of the judicial system. This trend is most alarming, dangerous and distressing for the judiciary, which is invariably, blamed for riot providing justice, fairly, speedily and diligently. Why is this distrust? What are the causes for the lack of confidence? Who are responsible for this predicament? What are the remedial steps we need to take to set the house of judiciary in order? Why is the axiom "justice delayed is justice denied" rampant in our country?. These are some of the questions, we should not feel shy to pose and answer frankly. Otherwise, the day is not far when we might be blamed for passing a legacy to the future generations that is, too, embarrassing. Without, in any manner, putting the entire blame of the amiss indicated above upon the judiciary, I am of the considered view that it is for the judiciary to accept the responsibility and the challenges of today and correct its "erroneous zones". The possible areas of correction in this behalf have been indicated by Chief Justice Marshall, in quite a apt manner, when he said and I quote:-‑ "I have always thought from my earliest youth till now that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people was an ignorant, a corrupt or a dependent judiciary." ("for emphasis the underline is mine") There can be no doubt about the veracity of this statement, it also cannot be impugned that the nations, which have eradicated the aforementioned vices from their judicial system and have adhered to and have 'respected the "rule of law" are the nations blessed with peace, progress and prosperity. But those, lacking in this behalf, are still lying at the lowest ebb of social, moral, economic and political injustice. In addition, in order to highlight the importance of the system based on justice, I can not resist myself from quoting two beautiful statements of the jurists of their time. JAMES MADISON, one of the architects of American Constitution, once said:-‑ "Justice is the end of Government. It is the end of civil liberty. It ever has been and ever will be pursued, until it is obtained, or until liberty to be lost in the pursuit." MANU, another Jurist from America avowed:-‑ "Justice, being destroyed, will destroy, being preserved, will preserve, it must never be violated." The survival of a nation is thus dependant upon the preservation of justice. Let us preserve it before, God forbid, by our own deeds, we are broken, disseminated and overpowered. I am sure that we can ably save ourselves by following the "rule of law" and the path leading to justice. This task, my brother Judges, can be performed by none other but the Judiciary itself, as the Judiciary is the custodian, preserver and the administrator of justice in the country. Coming to the topic under discourse i.e. "Educating the Judges" in the above backdrop, I understand it to mean that those administering justice, should have adequate development of character, the requisite mental aptitude and power in the field of their expertise. The term "Education" can be understood as "the process of learning", It can also be equated with the art and the knowledge, which one should acquire and possess for performing his functions and when these expressions are construed in relation to a Judge, it symbolizes a person, who with the full knowledge of law, immaculate character of integrity and independence, is ripe and committed to provide "Justice" to those, who come to seek it from him. Therefore, I shall very briefly endeavour to emphasize the relevant principles in this behalf as follow:‑ (a) COMPETENCE AND KNOWLEDGE OF A JUDGE Lord Marshall has described an ignorant Judge as a punishment and a mundane disaster. I totally agree with this. Therefore, right at the time of the appointment of Judges, the authorities, responsible for the recruitment process, must ensure that not only they meet the minimum academic qualifications, but also the candidates, seeking to become Judges at any level of induction, have the requisite knowledge of law, as well as clear perception about the social, moral, economic and political values of our culture. I have somewhere read that a Judge is remembered by the judgments he delivers, and a Chief Justice by the appointments, he makes. In fact, for seeking a Judge, a Chief Justice is likely to take pain, akin to the labour pain of a woman. This rule, I find, should be followed for the appointment of every Judge at every level. Once a Judge has been appointed, specially the one, who has been inducted at the initial stage, must be given extensive training in the Judicial Academies. There should be more than one such Academics in the country. They should exist, at least, at all provincial levels, where the qualified professors of law, 'the jurists, the retired and the serving Judge, are called to impart knowledge and share their experiences. There should be a full-structured and thoroughly planned course for training Judges, whereafter, they should be properly tested and then sent to the field. Besides, the law moots and mock trials should be conducted regularly for them through which they must be apprised and acquainted with the basis of the Substantive and the Procedural laws, so that they can develop the right approach for resolving factual and legal propositions and the art of writing judgments, through a well-developed procedure or vetting. For the members of the subordinate judiciary, other than the new appointees, refresher courses in academies or workshops such as this, must be frequently held, allowing greater interaction amongst the Judges, and providing them an opportunity to share and discuss legal propositions and to receive guidance from the senior Judges and jurists. It can help them keep abreast of the latest legal practices since up-to-date, the knowledge of law is absolutely fundamental for the dispensation of justice by a Judge. It is also the duty of a Judge to apply the correct law and to grant relief to the concerned litigant, even if he has no knowledge of the applicable law or a wrong provision has been relied and cited by the parties before him. To do justice is a profound and sacred obligation of the court. It is possible that a party before it may not be represented by a counsel; however, this should not prejudice his cause or preclude the Court from granting what is due to the concerned, by applying the correct law. It is a rule of justice that the law must be written' on the sleeves of the Judges. In the context of education and training of Judges, it is expedient that a brief reference is made to the significance of Substantive Law, i.e. the part of law, which creates, defines and regulates rights and duties of the parties. A Judge must fully know this law; otherwise his decision would result in serious miscarriage of justice. The Judges, in this regard, should acquaint themselves with the basic set of laws, such as the law of Contract, Specific Relief, Limitation, Court Fee, Pakistan Penal Code and other Criminals Laws, defining certain acts as offences. The Adjective, Procedural or Remedial law, again, is a very important branch of law, whose basic purpose and object is to regulate, systemize and create discipline in the conduct and the process of litigation. It is essential for a Judge to master the Procedural law, both in conducting civil as well as criminal cases. There are provisions in the Civil and Criminal Procedural Codes to the effect that an order or sentence should not be reversed on account of any procedural irregularity, until some prejudice has been caused to the cause of justice. However, if a mistake in applying the procedural law is a glaring one, the decision cannot sustain. For an ignorant judge, it has been aptly said by the late Justice Syed Mehmood Ahmed Khan, a great Judge of the sub-continent in old days, that such a Judge is like someone sitting under as Oak tree deciding matters according to his own whims and caprice. Dear brother Judges, as you all may know, justice and arbitrariness are sworn enemies, which cannot co-exist or survive together. It is my own experience that many cases have to be remanded to the trial court or the first appellate court simply because of some mistake committed by the Judge, either in applying the correct substantive law or following the right procedure. Therefore, if the Judges have sufficient knowledge of both the above type of laws, the agony of delay in the dispensation of justice can be easily avoided. It will not only save time and money of the litigant public, but also prevent the pilling up of huge log of cases. More importantly, it would also exonerate the judiciary from the blame of tardy justice. (b) CORRUPTION Corruption is the second major vice or hurdle mentioned by Lord Marshall in achieving justice, with which there can be no cudgel or cavil. Corruption is a moral deterioration of human character. A corrupt person acts fraudulently with malafide or malice. As per Zia-ur-Rehman's case reported in PLD 1973 SC 49 it has been held that "Acts done with malafide are acts without jurisdiction", meaning thereby that they would be nullity and non-existent in the eyes of law. The decisions, thus based on "corruption", the term in which bias, impartiality, nepotism and intellectual dishonesty can be read into, are tainted with extraneous influences, and the objective of "justice", which is fundamental role of the court, is neither conceivable nor achievable. As repeatedly mentioned, the duty to do justice, is a very scared obligation imposed upon the judicial branch of the state. It is one of the traits of God Almighty, and whosoever, intends to pollute the stream of justice, sets himself at war with the God Almighty. Thus such a person is an enemy of Allah, who can never succeed. I have no intention to say that we have corrupt judicial system, but at the same time, it is our duty to dispel this impression, in case it is false, by our acts and deeds strictly by following the norms of justice. (c) INDEPENDENCE OF JUDICIARY The absence of independent judiciary is the third shortcoming mentioned in the statement of Lord Marshall and this, too, is true, since a coward, timid, bashful, insecure and weak judiciary is incapacitated and incapable of doing justice. In my considered view, there are three main factors, which inflict upon the independence of judiciary, that is to say (i) Khauf (fear or terror), which obviously lies in the mind of Judges (ii) Muffad (gain; benefit; purport; interest) and (iii) Maslahat (the expediency). It can safely be stated that in whatever form or nature, these factors are the sworn enemies of a Judge that impinge upon his independence. For sure, without there being independence, the judiciary cannot maintain impartiality or neutrality, which are its profound traits and attributes. Under our Constitution, the Judiciary has been assigned an important and delicate role to play, namely, to ensure that none of the organs of the State or the Government functionaries, at any level, how high it may be, act in violation of any provision of the Constitution or of any other law. Because of the above nature of work entrusted to the judiciary, it was envisaged in the Constitution that the judiciary would be independent. Unfortunately, we are still endevouring to achieve this level of independence, which has been declared absolutely essential by Lord Marshal, when he said:- "Advert, sir, to the duties of a Judge. He has to pass between the government and the man whom that Government is prosecuting, between the most powerful individual in the community, and the poorest and most unpopular. It is of the last importance that, in the exercise of these duties, he should observe the utmost fairness. Need I press the necessity of this? Does not every man feel that his own personal security and the security of his property depends on that fairness? The Judicial Department comes home in its effects to every man's fireside it passes on his property, his reputation, his life, his all. Is it not to the last degree important that he should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience. Thus, it is expected from a Judge, for the purposes of the discharge of his duties that he must learn to be independent and train himself to safeguard this basic value' of his judgeship, not only from the outwardly stimuli, but also from inside, because Khauf, Muffad, Maslahat, partiality and dishonesty are the vices that come from inner-self. However, with the passion to do justice, these can always be overcome. Having stated in my own humble way, what I thought are the foundational norms for the dispensation of justice, I feel expedient to mention certain rules of justice, which a Judge must know. Due to the paucity of time, I have tried to put them rather in a simple form except briefly elaborating a few:-‑ (1) Let justice be done, though the heavens should fall. (2) Justice ought to be un-bought, because nothing is more hateful than venal justice; full, for justice ought not to halt or be shut out; and quick, for delay is a kind of denial. Justice is double, viz., punishing severely, and truly preventing. Justice truly preventing is better than severely punishing. Justice strengthens the throne. (3) Justice is to be denied to none. (4) Justice is neither to be denied nor delayed. To no one should we delay justice (5) To no one should we sell, or deny or delay right or justice. (6) Justice know neither father nor mother; justice regards truth alone. (7) The law cannot be defective in dispensing justice. The law ought not to be deficient in administering justice to the complainant. The law is not defective in administering justice. (8) No injustice is to be presumed in the law. The power of the king is to execute justice. The question must refer to the laws, and not to persons. He, who decides anything, one party being unheard, though, he should decide right, does wrong. (9) The greatest charity is to do justice to every person, and at any time whenever it might be necessary. (10) Hasty justice is the step-mother of misfortune. (i) "The Act of the Court should not prejudice a Party" It is one of the important rules of natural justice. The Courts are neutral and impartial arbiters; their impartiality and neutrality is fundamental and foundational to the concept of justice. They are like an umpire in a match between two rival teams; who should know that any deliberate, indiscreet, wrong decision on his part may cost the match to a team. They should not be partisan to any party before them and are bound to pass verdicts strictly according to law. Their comprehension, approach and the orders should not be such, which may put one party to a disadvantageous position and give the other one an undue advantage. Therefore, if any such action or inaction is spelt out from the record of the case, it has the effect of nullifying the trial and, obviously, the decision of the court. (ii) "Justice should not only be done, but should be seen to have been done". The rule, again, is founded upon the principles of neutrality and the impartiality of a Judge, the perception and impression of the litigant public, in particular, and the public-at-large. It provides a confidence--building criteria for the entire society without which the prestige of the judiciary may not be attained. The distinction between "justice being done" and "being seen to be have been done", has been emphasized in many cases and in Abdul Hafeez v. Mst. Zubeda Khatoon (1992 CLC 471), it has been held that it is not "merely a maxim to adorn the law books or a pious sentiment only worthy of quote, it is a living concept capable of being judicially noticed and enforced". The Judge should not show any bias or partiality towards any litigating party before it. The attitude towards both the sides should be equal and neutral; the parties or their counsel should not, be allowed to visit the Judge privately; the hearing of the case should not be conducted in the absence of one side; if one side omits to participate in the proceedings, appropriate action envisaged by law must be resorted to instead of hearing the case in its absence; if there is any bias of the judge towards any party, the case should not be heard; the proceedings in the case must be conducted in open court, except if the circumstances of the case warrant otherwise or such is the mandate of law. (iii) No one should be a Judge in his own cause This rule of justice is based upon the bias and independence of the judiciary. As has been stated earlier, a bias mind is incapacitated to dispense justice and so is the position of a Judge, who suffers from the weakness of lack of independence. The principle is not confined merely to the case where the Judge is actually a party to a cause, but applies to' a cause in which he has an interest. Such interest as defined by various jurists in number of precedents may be "legal" or "pecuniary" and is distinguished from a favour, directly or indirectly. Such an interest will disqualify a Judge. In Lesson v. General Council of Medical Education (1989) 43 Ch.D.366. it has been held "a person, who has a judicial duty to perform disqualifies himself from performing it if he has a "pecuniary" interest or "legal interest" in the decision which he is about to give or a bias which renders him otherwise than an impartial Judge. If he has such an interest in the success of the accusation, he must not be a Judge." SPEAKING JUDGES Interfering and speaking, too, much by a. Judge in the course of a trial and the hearing of the case is not at all appreciable, because it may cause prejudice to either side and infringe the rule of fair hearing. In certain cases, this attitude of the Judge has reflection upon the decisions, which may be set aside on that count alone. In this behalf, I am reminded of a classical case from the English Jurisdiction, that is, "Jones vs. National Coal Board [1957] 2 QB 55". The facts of the case are quite simple. The roof of a coalmine collapsed. A miner died in the incident. His widow claimed a certain amount of damages. Her claim was partly allowed. Both the parties appealed against the decision by raising common ground complaining about the excessive intervention of the Judge during the proceedings of the trial. The appeals were accepted. The Appellate Court was of the view`‑ "No one can doubt that the judge, in intervening as he did, was actuated by the best motives. He was anxious to understand the details of this complicated case, and asked questions to get them clear in his mind. He was anxious that the witnesses should not be harassed unduly in cross-examination, and intervened to protect them when he thought necessary. He was anxious to investigate all the various criticisms that had been made against the board, and to see whether they were well founded or not. Hence he took them up himself with the witnesses from time to time. He was anxious that the case should not be dragged on too long and intimated clearly when he thought that a point had been sufficiently explored. All those are worthy motives on which judges daily intervened in the conduct of the cases, and have done for centuries. Nevertheless, we are quite clear that the interventions, taken together, were far more than they should have been. In the system of trial, which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination, on behalf of society at large, as happens, we believe, in some foreign countries. A judge of acute perception, acknowledged learning and actuated by the best of motives, has nevertheless himself intervened so much in the conduct of the case that one of the parties may, each of them has come away complaining that he was not able properly to put his case; and these complaints are we think justified." While allowing the appeals, the court further held "In these circumstances, we think we must grant the widow a new trial." ABOUT THE CONDUCT OF THE JUDGE IN THE COURT While sitting in the Court and conducting the proceedings, a Judge should be composed, sober, firm, resolute, tolerant, courteous, polite and decent. He should not loose patience, or be rude while addressing to the counsel, the party or a witness appearing before him. He should always avoid extraneous talk during the proceedings of the case or any altercation with anyone. The rudeness and attitude of insult is unbecoming of a Judge. It may be taken as harassment to the counsel, the party or the witnesses, who may be precluded to propound the case or give evidence. This is strictly impermissible under the law. I may apprise the worthy audience from my own experience that a lawyer can never comfortably put his case before a rude, arrogant or insulting Judge. Moreover, a Judge should not, ordinarily, act at his own motion except where it is urgent and imperative to act spontaneously. The reason is that he should not appear both as the prosecutor or partisan and the Judge. For this role does not become well of him and may give an impression of partiality. ABOUT THE WITNESS A witness is not a party to the litigation, but is a very important character, having a significant role in the dispensation of justice. He is the person, in criminal matter, who has to prove the case of the prosecution for the purpose of proving the guilt of an accused, and in the civil matter to prove/disprove the issues involved. Thus, the witness should not be scorned and treated with contempt or ridicule so that under the fear of insult and intimidation he may not be able to freely give the evidence he has come to put forth. Besides, this attitude of the judiciary may cause a scare in the society, precluding anyone to stand as witness in a matter, which may be fatal to the judicial system. Rather a Judge should give a witness proper respect and, if requested, provide him the protection while coming to the court for giving evidence, and leaving thereafter. The court should also save him from harassment and scandalous questions by the opposite side. This protection and respect, however, may not be extended to those, who are guilty of perjury. ABOUT HIS PUBLICITY A Judge should have no urge for publicity and popularity, because such an ambition may lead him to injustice, and in the passion for the above, he may not be able to decide the case according to its merits by applying the correct law. Rather he might be swayed for the urge of being judged as good in the public view. ABOUT WRITING OF JUDGMENT A judgment of the case should be precise and pithy, it should not be verbose and burdened with rhetoric. The facts must be clearly and succinctly stated. Let me share a beautiful factual narration by Lord Denning in the famous case regarding Mareva Injunctions. He mentioned:-‑ "The facts were simple. Japanese shipowners entered into charter parties with two Greek gentlemen. The slump in shipping overtook them. They did not pay the hire. They disappeared. Their office in the Piraeus was closed. But they had funds with a bank in London. The Japanese owners feared that the two Greek gentlemen would transfer those funds to Switzerland or some other country. It could be done in a moment by a telegraphic transfer. So their solicitors issued a writ for service out of the jurisdiction-and immediately-before service-applied to the court here for an injunction to stop the funds being removed outside the jurisdiction. The judge refused it on the simple ground that nothing of that kind could be done in England. The Japanese shipowners immediately came to our Court and we immediately granted the injunction." The judgment should be structured on the principle of speech, which should be similar to a woman's skirt. It should, neither be too short that it does not cover the subject, nor too long that one looses the interest. The judgment, thus should be divided into three parts. The statement of facts, the discussion upon the factual and legal propositions involved in the matter and the clear conclusion thereupon. It must be a speaking verdict, showing the application of judicial mind by the Judge. The confusion, ambiguity and vagueness should be recovered from it, before the signatures are put by the Judge. In the end, I am sure my paper would remain incomplete, if I do not mention and refer to the basic principles about the institution of "judiciary" and its system in an Islamic State, as has been summarized by HAZRAT ALI' in his letter to MALIK-E-ASHTAR, giving instructions on the qualifications and the appointment of Judges and their conduct. It reads:-‑ "So far as dispensing of justice is concerned, you have to be very careful in selecting Judges for the same. You must select people of excellent character and high caliber and with meritorious record. They must possess the following qualifications: -‑ (i) Abundance of litigations and complexity of cases should not make them lose their temper; (ii) When they realize that they have committed a mistake in judgment they should not insist on it by trying to justify it; (iii) When truth is made clear to them or when right path opens up before them, they should not consider it below their dignity to correct the mistake made or to undo the wrong done by them; (iv) They should not be corrupt, covetous or greedy; (v) They should not be satisfied with ordinary enquiry or scrutiny of a case, but should scrupulously go through all the pros and cons, they must examine every aspect of the problem carefully, and whenever and wherever they find doubtful and ambiguous points, they must stop, go through further details, clear the points, and only then proceed with their decision; (vi) They must attach greatest importance to reasonings, arguments and proof; (vii) They should not get tired of lengthy discussions and argument; (viii) They must exhibit patience and perseverance in scanning the details, in testing the points presented as true, in sifting facts from fiction and when truth is revealed to them they must pass their judgments without fear, favour or prejudice; (ix) They should not develop vanity and conceit when compliments and praises are showered upon them; (x) They should not be misled by flattery and cajolery. He further asked in his letter: "But there are a few persons having such characteristics. After you have selected such men to act as your judges, make it a point to go through some of their judgments and to check their proceedings and: (i) Pay them handsomely so that their needs are fully satisfied and they are not required to beg or borrow or resort to corruption; (ii) Give them such a prestige and position in your State that none of your courtiers or officers can overawe or harm them; (iii) Let judiciary be above every kind of executive pressure or influence, above fear or favour, intrigue or corruption. Scrutinize this matter with particular strictness because before your appointment this State was under the sway of corrupt, time-serving and wealth-grasping opportunists who were lewd, greedy and vicious and who sinfully amassed wealth and pleasures for themselves from the State authority." My dear brothers, this is the complete message, the lesson; the charter, the code of our learning. Let us follow it and the institution of judiciary and this country will Inshallah, thrive and prosper. ***