Justice Former Judge Sindh High Court & Federal Shariat Court

JUSTICE JUSTICE? By Justice S.A. Rabbani Former Judge Sindh High Court & Federal Shariat Court The english word 'Justice' is a translation of the Greek word ' dike'. Its adjective is 'dikaios' meaning 'Just'. A longer form of noun is 'dikaiosyne', the state of being 'dikaios'. The original meaning of 'dike' was literally a way or path; the way in which a certain class or people usually behave, or the normal course of nature, not always a right way. With the passage of time, word 'Justice' assumed a connotation as the right way. In our society, the word Justice is translated as ' Insaf' which comes from the word ' Nisf' meaning 'half '. Thus 'Insaf' would mean giving 'half ' to each of the two parties. It seems that it would not be Justice in all cases. As a matter of fact the word nearest to the meaning of 'Justice' can be 'Adl', which means placing every thing at its proper position. With the judicial system, we inherited a tradition of oath and, without giving a second thought, we adopted it. An oath by a judge has always been essential requirement for an elevation to the Bench of a Superior Court. The word 'Judge' itself gives a connotation that his job is to provide justice, and the people are misled thereby. The oath of a judge never required that he would do justice. The Constitutions, so far introduced in this country, never provided unequivocally and categorically that the job of a Judge is to provide justice. Government of India Act, 1935 was the first document that was adopted as Constitution of Pakistan. In that Act, the judicial Oath or affirmation was in the following form : "I, A.B. having been appointed Chief Justice (or a Judge) of the _______________________ Court do solemnly swear (or affirm) that I will bear true faith and allegiance to the Constitution of Pakistan as by law established and that I will faithfully perform the duties of my office to the best of my ability, knowledge and judgment." Then came the Constitution of Islamic Republic of Pakistan, 1956. In it, the form of oath of a Judge was a under: "I ______________ , having been appointed Chief Justice (or Judge) of the High Court of ______________ do solemnly swear (or affirm) that I will faithfully perform the duties of the office to the best of my ability, knowledge and judgment, without fear or favour, affection, or ill will, that I will bear true faith and allegiance to Pakistan, and that I will preserve, protect and defend the Constitution and law of Pakistan." In the 1962 Constitution, President Mohammad Ayub Khan introduced word ' Justice' in the oath of judges, but it was "Justice according to law" which is a term without a comprehensible meaning. It is in fact not Justice but implementation of law. Sometimes law is unjust and its implementation cannot be ' Justice'. However, the oath in that Constitution was in the following form: "I _______________ do solemnly swear that I will bear true faith and allegiance to Pakistan; That as Chief Justice ( or a judge ) of the Supreme Court of Pakistan (or the High Court of the province of ______________ ) will discharge my duties, and perform my functions, honestly, to the best of my ability, and faithfully in accordance with the Constitution and the law. That I will not allow my personal interest to influence my conduct or decisions as a judge; That I will preserve, protect and defend the Constitution; And that, in all circumstances, I will do Justice according to law, without fear or favour, affection or ill will." In the Constitution 1973, the following is the form of oath of a judge; I____________ do solemnly swear that I will bear true faith and allegiance to Pakistan. That , as Chief Justice of Pakistan ( or a judge of the Supreme Court of Pakistan or Chief Justice or Judge of the High Court for the Province __________ )I will discharge my duties, and perform my functions, honestly, to the best of my ability and faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law. That I will abide by the code of conduct issued by the Supreme Judicial Council; That I will not allow my personal interest to influence my official conduct or my official decisions; That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan; And that , in all circumstances, I will do right to all manner of people according to law, without fear or favour, affection or ill will. May Allah Almighty help and guide me (Ameen). It may be seen that the word ' justice' has consciously been avoided and it has been replaced by the word ' right' 'Doing right according to law simply means correct implementation of law. It is, therefore, clear that judges have never taken oath to do justice to the people. It is not the requirement and object of the system. The object is implementation of law and, for that purpose, Courts are like any other Government functionary, who is also supposed to implement the law. Simple people expect justice from courts though, they are only Courts of law, and not Court of Justice. It is merely a myth that by implementing law, Justice is done. Justice is a creation of the Nature and it cannot be dependent upon man made laws. No Constitution introduced in the country, or a document that attempted to replace a constitution, ever provided that courts have to do justice. In this Constitution, in the part relating to judicature, word 'justice' has been used only once, in Article 187, in the sense other than a title of a judge. It is also without a comprehensible meaning. The words used are "for doing complete justice in any case " it is not practically possible for a human being to assess what is "complete justice". The use of these words is, obviously, the result of unwary drafting. The judges do not have to do justice, but they have only to pretend that they are doing justice. How long we have to deceive ourselves.