Justice V. Certainty

JUSTICE V JUSTICE V. CERTAINTY By Muhammad Masood Asghar Civil Judge, Punjab Abstract There is a very close and inseparable relation between law and judges. They play the most important role in the development and growth of law. According to Holmes1 law is really what the Judge decides.2 While deciding cases judges have different approaches towards their work depending on their background. One approach is to seek to mould the law - and to interpret statutes -- so as to meet the justice of the case and the needs of the times, while the other is to stick to the letter of the law and leave the moulding of the law to the Parliament. One is for doing of justice, while the other for upholding certainty. Should judges seek to do justice? Or should they prefer certainty? Should they be progressive? Or stand still? This article argues in favor of an approach giving precedence to justice. When Holmes was an associate justice he once gave a young Hand a lift in his carriage as he was going to court. Hand got out at his destination, waved, and called out merrily, "Do justice, Justice!" Holmes stopped the cab, made the driver turn around, and rode back to the astonished Hand. "That's not my job!" he said, leaning out of the window. Then the carriage turned and departed, taking Holmes back to his job of allegedly not doing justice.3 This is the mindset of many judges and they have it not because they intend to do any injustice but because they feel so much bound by the rigid rules of law that concept of justice cease to figure in their objectives. They say that their first duty is to administer justice according to law.4 They rely more on the letter of the law and miss the substance. They want to be accurate and certain than be clear. But a litigant knocking the door of a court is almost always under an expectation that justice will be done to him. He may not know of subtleties of law. He considers judges as guardians of justice. After a study of complicated rules of law any one would feel armed with so many technical tools that a case can be decided in accordance with 'law' but with no regard for justice. Too much adherence to the printed word of a statute or rule laid down by precedent may kill creativity and growth of law. Rules of law, whether statutory or judge made, are normally based on reasons that look good at a particular time and age. When applied as law they have to be followed for their own sake and not for the sake of reasons on which they were founded. The rules of law gain importance and not the reasons that prompted them. However it must be borne in mind that it is not within human powers to foresee all possible future contingencies and even more so to provide for them in terms free from ambiguity. With the passage of time the underlying reasons may lose their rational force but the rules of law they gave birth to, stay in force. New times may bring new means of life and give people new perspective. So there is need of changing or moulding or even giving a new law to govern needs and social opinion of new days.5 Nothing in this world is permanent except the change. This was observed by Sir Henry Maine6 with remarkable eloquence: "Social necessities and social opinion are always more or less in advance of law. We may come indefinitely near to the closing of the gap between them, but it has a perpetual tendency to reopen. Law is stable; these societies we are speaking of are progressive. The greater or less happiness of a people depends on the degree of promptitude with which the gulf is narrowed."7 Sir Ivor Jennings8 said "the task which many writers on Jurisprudence attempt to fulfill in defining law is a futile one", for, according to him, "law has no definition except in a particular context."9 Taking that broadness of concept of law in mind, it may be said that law should be and is laid down in relation to moral concept of justice. Experience on the bench would tell many that law is really and most often than not that flexible. Judges, who give preference to rules of law over justice of a case, should realize this flexibility and broadness of the concept of law. Therefore it may be better that judges have an approach that has justice as its prime object. If a judge feels that he cannot do proper justice in view of a provision or principle of law, he should do his best to legitimately overcome that rule -- to mould or qualify it -- so as to do justice in that particular case. Legislative intervention may never be of any use in that very case. But in endeavoring to change or mould the rule of law, the means adopted by the judge should be all legal.10 As law is applied on members of a society, which is changing and evolving with passage of time, who can benefit from law staying stagnant? If we do not have judges who are willing to do things that have not been done before but are required for justice of the case, how will law grow and develop to meet the changing needs of the society? Many a times it is argued before courts that such and such thing has never been done before. This argument was answered emphatically by Lord Denning: "What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on: and that will be bad for both."11 Lord Macmillan in Donoghue v Stevenson12 said that "The criterion of judgment must adjust and adapt itself to the changing circumstances of life." In a case13 involving tort, hearing the same argument of 'not having been done before', Pratt CJ gave his stern reply by saying: "I wish never to hear this objection again. This action is for a tort: torts are infinitely various; not limited or confined, for there is nothing in nature but may be an instrument of mischief." This approach favoring justice can be seen in action in Candler v Crane Christmas.14 It is this approach; towards doing justice, that has resulted in creation of remarkable legal fiction; in overcoming unjust ouster clauses in statutes, exemption and limitation clauses in contracts, in overruling various 'privileges' unreasonably affecting rights of a party and in recognition of inherent powers of courts. If it was not for doing of justice, what was the use of inherent powers of courts? The approach also paved way for a trend from literal approach of interpretation towards purposive approach of interpretation of statutes and documents. Courts have gone against express wording of a statute when by acting on it there was danger of clear miscarriage of justice. Courts have not allowed any provision of law to be used as a cover for wrong-doing. Legislative attempts to bar jurisdiction of courts have been qualified.15 They have laid conditions in which provisions of law should or should not be invoked.16 Provisions, rules or principles of law have been held to be mere tools for courts in reaching the truth. It has long been said 'Fiat justitia ruat coelum' -- Let justice be done, though the heavens should fall. However, as Denning says17, if justice is done, the heavens should not fall. They should rejoice. To illustrate, let me give a few examples. In England, law about exemption clauses was that exempting conditions were binding.18 In Karsales (Harrow) v. Wallis19, however, an exemption clause was pressed which was quite unjust. A hire-purchase company let a motor-car to a customer. A condition was printed on printed form: No condition or warranty that the vehicle is roadworthy, or as to its age, condition or fitness for any purpose is given by the owner or implied herein. The customer had seen the car a week ago. It was in good condition and would go but when delivered it would just not go and they had to tow it away. Court of Appeal avoided the rule of binding nature of exemption clauses by introducing the doctrine of 'fundamental breach'. They held that exempting clauses of this kind, no matter how widely they are expressed, only avail the party when he is carrying out his contract in essential respects. Although they were overruled by House of Lords, their decision prompted legislative intervention in the shape of Unfair Contract Terms Act 1977 which gave consumers adequate protection against exemption clauses. Consequently, exemption clauses were to be enforced only if they were just and reasonable. Hence law was reformed to suit justice between parties and it owed a great deal to the approach of the judges of Court of Appeal towards justice.20 Similarly, there have been many cases in which courts employed varying techniques and reasoning to overcome clauses in statutes which provided protection to actions of executive and other authorities and purported to oust jurisdiction of courts. Some examples may be found in Anisminic Ltd. v. Foreign Compensation Commission21, Northumberland Compensation Appeal Tribunal case22 from English jurisdiction and in Zafar ul Ahsan v. Republic of Pakistan23 from Pakistani jurisdiction. These cases gave law of the land a perspective that was more suited to do justice between the parties rather than relying on technicalities of law to knockout a party. Consistency and harmony among decisions of judges has long been held to be desirable objects of law. It has been stated that these objects give predictability and confidence to future litigants. However neither two judges have same background nor are facts and circumstances of two cases identical. Then forcing them to conform to previous decisions may involve compromising justice. Justice is quite a moral concept. Every judge has a sense of justice. Sometimes, it may differ with others' but mostly it accords. When we read previous decisions while deciding a case, with slight or more difference in facts, the questions, we ask to ourselves whether or not and to what extent or with what modification, to apply a previous precedent, are really moral questions.24 As a normal rule a judge should abide by the decisions already made but he should always be ready to depart from that rule when justice of the case so required. Thus if a court grants bail in a case involving possession of a contraband article in a certain quantity, it should not become a steadfast rule to grant bail in all cases of possession of contraband of that particular quantity. "The judges should so handle precedent -- and should so interpret statutes -- as to do justice -- in a way fitted for the needs of the times in which we live."25 Law should be certain but not at the expense of justice. If lawyers and judges hold to previous decisions too closely, in oblivion of their fundamental duty towards truth and justice, it will kill creativity and flexibility which is manifest need of law to meet the challenges of any dynamic society. They may get lost in: "That codeless myriad of precedent, That wilderness of single instances"26 Many Englishmen took pride in the words of Tennyson, when he spoke of England as a land: "Where Freedom broadens slowly down From precedent to precedent"27 But if precedents are applied no matter how much injustice they inflict, they do nothing to broaden the basis of freedom, rather to narrow it.28 As a scientist looks for truth all the time, a lawyer or a judge should go for justice. Just as a scientist takes his instances to build up a proposition, so should lawyers do with precedents. They may only start with precedents but not end with them. Just as scientists discard their propositions when shown to be false through experiment, lawyers should also seek to modify rules of law when they do not suit needs of times or reject them when found to inflict injustice.29 There was a time in England when House of Lords held themselves to be completely bound by 'stare decisis'. Even if a previous decision caused injustice, it was for the Parliament to put it right and not for the judges. Quite often, Parliament was not that interested. However there were voices against it; Sir Frederick Pollock said "The members of the Court at a given time cannot make its usage a strict law for those who succeed to their authority hereafter."30 Lord Gardiner made following statement in House of Lords on 26th July 1966: "Their Lordships nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this house as normally binding, to depart from a previous decision when it appears right to do so." The house resolved that it would no longer be absolutely bound by their decisions. Similar observation by the august Supreme Court of Pakistan in Khalid Iqbal v. Mirza Khan31: "Constitution did not impose any restriction or bar on the Supreme Court to revisit its earlier decisions or even to depart from them, nor the, doctrine of stare decisis would come in its way so long as revisiting of the judgment was warranted, in view of the significant impact on the fundamental rights of citizens or in the interest of public good." Many apex courts worldwide consider them at liberty to revisit their previous decisions. They will reopen a previous decision if they find it to work injustice. Privy Council took similar view.32 US Supreme Court overruled a previous decision of its own in Brown v. Board of Education of Topeka33 when it held that black children were to be taught in schools along with white children. South African Supreme Court held34 that blacks were entitled to vote equally with whites by departing from one of its previous decisions. Same approach was taken by Indian Supreme Court.35 In Isreal it was done by Act of Parliament, which said that Supreme Court was not bound by its earlier decisions.36 But why restrict that rule to the highest forums; House of Lords or Supreme Court. If some mistake is found with the passage of time, should it be proper for lower courts to continue the error and perpetuate it. Many poor litigants would not have the means to take their grievances to the apex level. The 'Supreme Court' may never have an opportunity to correct the mistake that is highlighted by time. Many cases are settled without appeal to higher courts. Many powerful will buy off an appeal by giving some consideration to the other party and will have a precedent in its favor, which can be used as a weapon in subsequent cases. Thus a wrong decision may be perpetuated. So, lower courts should also play their part in development and growth of law. This was advocated by great Lord Denning in Davis v. Johnson37 while sitting in Court of Appeal, but was rejected38 by House of Lords. Nevertheless, Courts of Appeal in New South Wales, Victoria, South Australia, and New Zealand followed this approach. In Bennet v. Orange City Council39 Wallace P said: "Giving full credit to the desirability of certainty in the law (which occasionally appears to be a pious aspiration) I consider that even an intermediate Court of Appeal may, on special occasions and in the absence of higher authority on the subject in hand, play its part in the development of the law and in ensuring that it keeps pace with modern conditions and modern thought, and accordingly, in an appropriate case, I do not think that an earlier decision of the Court (including this Court) should be allowed to stand when justice seems to require otherwise." Should all courts other than the apex court of a country say to a challenger that we cannot consider whether an earlier decision was wrong or not? That means, for example, whenever a decision/precedent of a High Court is challenged in Supreme Court. will it not hear the views of present High Court on it? In Conway v. Rimmer40, a case involving Crown Privilege about disclosure of certain documents, Lord Denning, while sitting in Court of Appeal and giving a dissent, went against a ruling of House of Lords41 on the same subject. The precedent of the Lords said that Crown Privilege protects production of certain documents in court. Whereas, Lord Denning, keeping in view the manifest justice of the case, stated that the privilege should be overridden. His colleagues (in majority) felt bound by the authority of the House. However, when the case went to the House, they unanimously overridden Crown Privilege and overruled its earlier decision. It may not have been possible without the courageous dissent. In Schorsch v. Hennin42 Court of Appeal went against a previous decision of House of Lords.43 House of Lords had settled that an English Court could give judgment only in sterling and not in any foreign currency and that law was never challenged. If the rule was applied by Court of Appeal in Schorsch v. Hennin, it would result in clear injustice. A German company supplied goods to a firm in England and stipulated to make payment in German Deutschmarks. The English firm did not pay. The German company sued in English Court and sought a judgment in German Deutschmarks. The Judge said he could give judgment only in sterling and rate of exchange to be taken at the 1971 figure when goods were supplied. That meant great loss to the German Company and they would lose one-third of the debt. Court of Appeal in order to avoid a manifest injustice turned a 'blind eye' to the ruling of House of Lords in Havana case44. Lord Denning said that courts in England have insisted on judgment in sterling because of their faith in sterling as it was a strong currency with no equal. However "things are different now." As the reasons underlying the rule did not exist, Court of Appeal discarded the rule laid down by House of Lords. The ruling of Court of Appeal was relied upon in another case Miliangos v. Geo. Frank45 which ultimately went before House of Lords, and the House itself overruled Havana case and gave judgment in foreign currency; Swiss Francs. That would not have been possible if Court of Appeal were not guilty of some 'distortion of judicial process' and the House of Lords may never had an opportunity of overruling the Havana case and that might have proved to be a disaster for English trade with overseas countries. In the end, I hope that this article is not taken as an attempt to free lower courts of the shackles of precedents of Supreme Courts on the pretext of some abstract sense of justice but suggests a departure when there is danger of apparently clear failure of justice by acting on it. Failure of justice should never be an option for any court under any circumstances. Judges should try to temper law so as to accord it with justice. It should not always be justice according to law but, whenever legitimately possible, law according to justice. The word 'legitimately' has importance here. A judge is subject to law and must abide by it.46