0
WHAT do judges really do? What magic do they use that, not them, but the words they speak, dictate and rule? What is their lot? What objects are hidden under their robes that many try to de-robe them? Surely being a judge is no easy task. You are to judge people, to resolve their disputes, to conciliate and determine rights. But you are also expected to do justice, to ensure fairness, and to protect rights. Above all, you are tasked to apply the law. Ordinarily, this would be enough for most people to lose their heads, not at the guillotine of political chaos, but because of the taxing demands of conscience to do what is right.
Unfortunately, in this land of the pure, perhaps because there is no right or wrong, many judges find themselves in the fray of political chaos. Questions are raised of allegiance, of tribal support, of national loyalties, of favours, kickbacks and foreign conspiracies. Let alone the veracity or otherwise of all this, these questions strike at the heart of the law — what becomes of it? What is the law of this land where judges pronounce judgements merely to dethrone political leaders who have become liabilities? What rules or principles are at play, which set out the legal and political system of the country? These are questions which stare us in the face, yet no answers are attempted by our ruling elite.
There is no need to despair, however, as there can be an attempt at an answer. One of the most influential conceptions of the law was put forth by Ronald Dworkin. According to Dworkin, the law can be thought of as a chain novel where each chapter is being written by the judges when they adjudicate and interpret the law. The interpretation and adjudication of the law should be consistent with the earlier chapters so as to result in a coherent whole.
Just like a novel should make sense, with recurring characters and storylines, so too must the judges lay down the law which fits in with the earlier chapters. On the whole, this coherence should reflect the political ideal of a society. The law should operate to reflect this inherent integrity: a judge is bound by earlier pronouncements yet retains the independence to take the story forward — forward in essence, while retaining the overall conception of political morality in a society.
Judges must lay down the law which fits in with the earlier chapters.
So, integrity — where the law should fit in with the rest of the picture to present a coherent whole — is the bedrock of a functioning legal system. The spirit of this integrity is to make decisions by choosing an interpretation that the judge believes best from the standpoint of political morality, one that reflects the aims and aspirations of the whole of society.
Integrity is, therefore, not a mechanism of ensuring continuity, but a political ideal that ensures that the institutions of state work together in a way so as to treat the political community on the basis of principles. This integrity cannot be achieved without the personal integrity of individuals within the institutions, especially legal institutions, to ensure justice, fairness and a commitment to achieving those principles of political morality. Hence, the integrity of a judge is to be judged from their commitment to the principles of our political morality — principles such as respect for individual rights, liberty, a role for religion in society, freedom and accountability; integrity can also be gauged by the way a judge raises these issues in his or her judgements.
In this light, consider the recent judgement of Justice Babar Sattar wherein he initiated contempt proceedings, but in doing so, quite philosophically asked the following questions: is the rule of law to be treated as a device capable of producing nothing other than feel-good rhetoric in Pakistan, or is it to be regarded as a meaningful concept signifying a legal system that affords ordinary citizens the rights and liberties guaranteed by the Constitution? Does our legal system have the ability to give effect to the protections the law affords to citizens, while simultaneously operationalising the obligations it imposes on the exercise of state power? Does our court system have the capacity to minimise the gap between a blackletter law and its enforcement such that the law serves a useful purpose in citizens’ daily life and experience?
In asking and then attempting to answer these questions, there is a display of immutable integrity — both personal and professional. If integrity is to provide an answer to these existential questions regarding our state and society, the starting point must be integrity within.
The writer is a litigator based in Islamabad.
Published in Dawn, June 24th, 2024
