Part III: Ethical and the restraining features of the Bar, the Judiciary and the other ethical professions, within the framework of which they are supposed to work

As a High Court Judge

I have, in Chapter 2 described a childhood experience where I read in my course book a remarkable incident of a lawyer correcting a judge in the habit of taking off his attention from the lawyer ’s argument to pay attention to his dog. I was so impressed with its grace, direction, purpose, dignity, and achievement that I made it my habit to collect all such incidents within the country and outside. Inside the country, with great pity, more sorrow, and greater horror I found the graph going down and down, resulting in physical violence and filthy abuses at each other. In other literate and civilized societies, I found the graph steadily going up, each correcting and improving the other.

On being appointed a judge of the High Court what I found most inconvenient was handling and managing the low hanging sleeve of my gown. Very peculiar design, slit at the elbow, the sleeve becoming broader and going down below the knee. I could not understand the logic of it in spite of having studied with great attention logic and ethics. The first lesson in judicial ethics that I learnt from my knowledgeable seniors was that this long sleeve was symbolic and a reminder to the judge that all laws of the land are supposed to be written on it and no judge can ever be heard pleading that the law was not pointed out by the lawyer or argued by him.

As regards lawyer’s gown I was told it has no pocket, only a pouch at the back opposite his neck for collecting unseen, whatever his client dropped as his fee. A mere symbol, a decent reminder, but so loaded with ethical wisdom that it overwhelmed me and I have even today not lost sight of it. The core of it is endless wisdom and knowledge for the judge, honest selfless service for the lawyer.

 

A Barrister, without being a Barrister

A lawyer with whose name was always added Barrister used to be occasionally present at the Judges Entrance gate of Lahore High Court and used to note the arrival time of the judges. I enquired from the senior judges and came to know from them that he had gone to the UK to become Bar-at law. There, an optional prescribed course was a lecture, attendance not at all required, but those who attended were required to sign a register kept there. Our would-be Barrister signed the register but walked away without attending the lecture. A member of the staff saw him doing this. He wrote down a note that he should not be cleared for the Bar. He returned unsuccessful in becoming a barrister but made a success of it by a lifetime title of Barrister with the additional self-acquired personal satisfaction of keeping disciplinary oversight over the judges.

What was denied to him outside the country was conferred on him inside. We, at the highest level, started rewarding the culprit.

Conviction and imprisonment, a matter of honor

Note: All of it is a translation from Urdu of what is written in his book “Jaeza” by KMA Samdani on page 45)

On investigation, it was found that inspector of the Cooperative Bank himself was involved in it. He was a Colonel of the National Guards also and was known by the name of Colonel. On his pointing out a bulk of the stolen money was recovered also. A military court sentenced him to seven years imprisonment. Colonel Saheb was a very good player of tennis and was a member of Chenab Club Lyallpur. What needs mention is that after he came out of the prison he was heartily welcomed by the club, restored his membership. Was it proper? To make a certified criminal a member of an honorable club? What one can expect from a society which confers honors on Convicts.

 

Judiciary leads in diluting its own ethics

I may be excused for incorporating in this part some portions of over thirty-five-year-old report of the Eradication of Corruption Commission

Along with another judge, we attended an International Conference on Copyright and Patents in the neighboring country. One of the speakers there said that some doctors prescribe fake medicines. I asked why they should risk their careers. The reply was, for easy money, for more money, and for quick money.

Supreme Court Performs

Case No.3A Page 119 Report of the Commission on Eradication of Corruption submitted to the Government on 2nd October 1979.

A student obtained admission in a medical college by representing that he had obtained 643 marks. Initially, the marks so disclosed stood the test of verification also. Subsequent inquiries of the Board showed that he had obtained 533 marks. It quashed the result, disqualified the student from appearing at seven examinations of the Board. The Medical College expelled the student. On his writ petition, the Supreme Court maintained the decision of the Medical College. The Supreme Court then did the most unusual thing. It quashed the Boards decision on the supposed ground that “it could have been the result of a mistake”. On his representation to Government, the Principal of Medical College strongly opposed his readmission to Medical College. The Secretary of the Department wrote, “Supreme Court left the decision of his readmission at the discretion of college authorities and the student has already spent three precious years of his life in a medical institution, his case may be sympathetically considered by the Governor”. The Minister commented that the student was the son of a doctor and nephew of a War Hero. The Governor allowed him on the April 1973 to complete his course.

After the doctrine of necessity, the Supreme Court has come out, and applied, a self-destructive doctrine of ‘possibility of a mistake’. The lawyers know the doctrine of beyond reasonable doubt in criminal cases, the preponderance of probability in civil cases and the doctrine of good faith, fairness, and justice in discretionary matters. This doctrine of the possibility of a mistake throws every judgment of the Supreme Court itself in jeopardy. While maintaining the Board’s decision how could a discretion be still left with anybody? A blunder unparalleled.

 

High Court Performs

Case No.1 Page 115 Report of the Commission on Eradication of Corruption submitted to the Government on 2nd October 1979

A student appeared at the Intermediate (supplementary) examination held in 1967 and secured 423 marks. He again appeared in 1968 and failed. A forged admission form with a forged enrollment number was substituted on the record of the Board and on its basis the student got a result card showing to have obtained 639 marks, which were the marks obtained by some other student. He got admission in the medical college. The Board quashed his result. In Medical college he was served with a notice when studying in the third professional. He challenged both the actions but the single judge dismissed it. So did the Division Bench of the High Court. While doing so the Division Bench made following observations in the judgment.

“By striking the name of the petitioner from the college rolls, no benefit will accrue to any person. It is common knowledge that each Medical College costs the Government itself Rupees 50,000. The Government has on the education of this boy also, during the last four years, incurred a considerable expenditure and after a year or so when he passes the M.B.B.S. examination he will be able to serve humanity and the amount which the Government has spent on the education of this candidate will also not go waste. However in saying so I am fully conscious of the fact the petitioner has obtained the admission to the college by employing and improper means, but I have made these observations only with a view to emphasizing on the college authorities that simply because the Board has taken the decision they are not necessarily to follow the course of expelling the petitioner from the college and the principal who has issued the notice to the petitioner, may in his discretion take his independent decision. Subject to the above remarks this petition is dismissed”

The Civil Court also performs

From the same case as above – Page 115 Report of the Commission on Eradication of Corruption submitted to the Government on 2nd October 1979

The student took the M.B.B.S. examination, but his result was withheld as his name was sought to be removed from the rolls. The student this time filed a civil suit. The Civil Court decreed the suit observing as follows:

“It is clear that under Article 42 of the prospectus of the college the defendant No.2 had no authority to strike out the name of the plaintiff because a period of one month from the date of admission had expired.” The Court then reproduced para 4 and 5 of the High Court judgment and concluded.

“I rely on this judgment and the main point which appeals to my mind is that the plaintiff has already appeared in the final examination paper of MBBS has passed all the papers but the result of one paper i.e.  I.E.N.T. has been withheld by the university, this shows that his name is struck off from the college rolls at this stage no benefit will accrue to any person. The Government costs thousands of Rupees on the education of students of the professional classes and in the instant case the Government has also spent a considerable amount. If he is allowed to continue his study in the same college which is now limited to one paper he will be able to serve our poor nation and the amount which the Government has spent on his education will also be not wasted.

The provincial Government went in an appeal which was dismissed mainly by reference to observation in the High Court judgment and to para 42 of the prospectus.

This is a unique case where Board has quashed the result yet the Courts without interfering with that decision give discretion and power to College and other authorities to keep him in college. Most Surprising!

The record showed that in 1973- 74 twenty-five cases of forged certificates were detected and were in the queue for a decision by authorities.

Others also perform

A student’s name was removed from the rolls of the Medical College on 29th October 1975 on the report of the Board that his certificate was forged. On 9th March 1976, the Chief Minister rejected the application of the student for readmission to the college. On 12th December 1976, the Prime Minister visited the District Headquarter where the Medical College is located. The Pakistan Student Federation pressed the demand for the restoration of the name of the candidate on the rolls of the college. The Prime Minister was pleased to accept the demand. The College implemented the direction.

Our Judiciary, its Institutional setup, its shortcomings, all in the global context

Tribal Hold on the Society Unreasonably Pervasive and strong in Pakistan. Pakistan was created in the name and for the sake of Islam. For thirty-eight years after the creation of Pakistan, the presumption remained that only the Syeds were governed by Shariat law the rest by tribal law as diverse as the tribes. The last vestige of customary law was effaced in 1983 by Supreme Court by its decision.   Nevertheless, the tribal honor, the family honor, the personal honor continued to rule with greater brutality.

 Tribal view of international Politics: In spite of many lessons to the contrary, it is that the friend around the corner would come to help gratis, Globally and historically, it has never been so. In the Second World War, Europe was in dire need of help. America came to its aid Congress made a law that no aid to be supplied without realizing payment for it. A device was worked out all aid would be under a lend-lease agreement. This made the greatest power on earth broke exposed to dictation and direction of the lender

State Power in the hands of tribals. All power is treated as personal, individual, God-given, all possible challengers to it to be slowly eliminated.

Power of the watchman: Every functionary of the department has the duty to intelligently move around and improve or correct things not in order or seemingly improper. You do not have to fix a day for it, move around with all protocol, to let the public and everyone know. Examples:

  1. When Chief justice came to inspect my court in Abbottabad I felt that at the entrance he bent a little and touched the glass pane of the bookshelf. I guessed it was to collect dust from it to evaluate my competence as a judge of
  2. In the High Court when I took over as Registrar I saw a window right in front of me with a board on which it was written “Complaint Centre”. When I found that none was coming there I went outside to find that ten yards away on the same path there was a Board “Not a Thoroughfare.” I called the O& M Superintendent and asked him to make a sense of it.

 

Power of the whistleblower. He has so many names and all the time coming in the forefront for one reason or the other. There must be one man designated as such, objective duty list given to him, not more than for six months on the post. Every month to submit a factual report of his performance to designated authority.

 Power of the Supervisor. To remain always on the move, to attend immediately to bottlenecks, to remove the difficulties of the public, to attend to their genuine grievances.

Inquisitorial Power: The bureaucracy does not believe in its existence or utility. Failure to exercise it leads to utmost irresponsibly, widespread corruption, oppressive for the Civil Society while the culprit bureaucrat basks in the sun with plenty of money in his pocket or elsewhere.

Adversarial power. Rigid, controlled, judge playing an independent impartial role controlled by precedents and hidebound decorum and dignity of his office.

 

Features of our lawmaking

 There are seven features of our lawmaking which deserve mention because they materially affect the result. Two of these are of attitude and five others of performance or lack of it. Our attitude towards lawmaking is that the law by itself is capable of accomplishing its purpose and objects. Nothing more need be done, not even the statutory rules are required. The second is that the harsher the law the more effective it is in achieving its objects and purpose and invariably the laws take effect immediately on being placed on the statute book

As regards the performance/ non-performance category, the first is that whenever a new law is framed, its financial implications are never worked out and no financial provision is made for its implementation.  The administering department from its already lean resources tries to do its best, which is seldom enough.  It takes years to back up the law with the required funds and that too when the will is there and the sustained effort continues.  The second is that Human Resource Management for administering the law receives no attention.  The result is that persons not exposed to the program, not equipped with the know-how, not even initiated in the basics, come to administer the law.  They administer it not according to the scheme or the requirement of the law but like any other bureaucratic function to which they are accustomed.  The third is that it takes years on account of various constraints to put the implementation machinery in place.  It is done only when either political pressure is exerted, or courts intervention takes place.  The fourth is that there is no provision in the law for monitoring, evaluation, and review of the performance under the new law or for publishing meaningful annual reports on the subject, for eliciting on a continuing basis the public opinion with regard to it.  The fifth is that the administering department keeps a distance from the aggrieved persons, makes no provision for their access to it, though it reserves for itself the right to launch prosecutions at will.  This practice of diverting the aggrieved persons to adjudicatory forums without inviting the intervention of the department itself makes the proceedings adversarial in character, deprives it of its public interest content and makes the litigation risky and contentious for the aggrieved person.

 

Existing prescribed good practices are not being followed.

In the judicial sector, there are very old statutory rules and instruction governing all fields of its activity. The judiciary as a whole in the country is not observing them, what to say of improving upon them. A few examples are as follows;

  • Extended inspection of the district courts spreading over one week to ten days in winter by a judge of High Court once in three years is required. This affords an opportunity to a judge of the High Court to interact with the subordinate judiciary, with the bar, with the litigant and with the bureaucracy in the district. There are courts in the districts which have not been inspected for ten years or more. Now surprise inspections are sometimes taking place but they are no substitute and are degrading for the judiciary.
  • The rules require that in the year in which the High Court judge does not inspect the courts the head of district judiciary, that is the district and sessions judge, shall inspect each of the courts in the district in a similar fashion. This can be phased out locally, one court every three months. This can be over time most commendable way of strengthening the judiciary, bringing it closer to the Civil Society for establishing a habit of collegiate functioning, for teamwork. Judges of the Superior Courts have now their own concerns of security, of protocol, of making emotional speeches to prove their point, of writing judgments which even the learned take weeks to understand
  • The judge of each court in the district is required to inspect his court once in a quarter equally thoroughly and submit a report to his superior.
  • Criminal cases which are pending over four months have to be reported to the next higher authority.
  • The abstract order sheet of all cases civil and criminal pending for over one year has to be submitted.
  • The statistic has to be correctly collected and faithfully reported in the prescribed form on time to facilitate preparation of annual reports. The annual report ceased to be published after 1973 and have only been revived under the Access to Justice Program. They have yet to be made statistically meaningful and objective.

 

Judges, at times, not judge like        

 What do our lawyers and judges do when they feel arrogant about themselves? I can cite instances. In 1980, note the year, I had a Barrister on Eradication of Corruption commission, very well connected. I asked him why he left the practice of law. He said for two reasons. First, whenever he started an argument within fifteen minutes one of the judges would interrupt him by saying adopt the Pakistani accent. Why did he give the impression of still being in England? This happened in High Court at least once a week. The second reason was that he got constructed a house which had the appearance of a cottage from outside but with all elite amenities as good as any, inside The clients visiting it spread the news that he was a poor and worthless., now the well-understood word in  Pakistan brought from the cricket field is phatechar.

About thirty years later Soofi Judge (KMA SAMDANI) left practice in the Supreme Court because he could not any longer bear the insults and the indignity that he had to face in the highest court of the country. I knew that asking him any more question would yield no more information. From his family, I learned that he had to sell his properties in order to raise the cash which he paid back to clients whose brief he was returning. He requested a very junior colleague of his to arrange a suitable lawyer to take up those cases. He found one who agreed to take up the cases on the same fee as was charged by Soofi judge. That was no problem because the fee had been returned to them. On coming to know what was the fee charged he backed out finding that they were not as high as he expected.

Such snobbery in court and outside should remind the lawyers and the judges, at least once a week, of the humble and ethical standards that their gowns originally were worn symbolically conveyed to them and to the world. The Lawyer’s gown had no pocket but a pouch at the back of the neck. No fee to be asked whatever the client could afford he put in the pouch. As regards the judges they had a gown with the sleeves split at elbow level and the sleeves became flat and wide going below the knee. I was told that it was to remind the judge that all the laws of the land were supposed to be written on the sleeves and he was not supposed to plead anywhere, any time, that the lawyer did not bring the law to his notice.

Administrative approach to people’s problems.

The administering department keeps a distance from the aggrieved persons, makes no provision for their access to it, though it reserves for itself the right to launch prosecutions at will.  This practice of diverting the aggrieved persons to adjudicatory forums without inviting the intervention of the department itself makes the proceedings adversarial in character, deprives it of its public interest content and makes the litigation risky, costly and contentious for the aggrieved person. The bureaucracy basks in the sun of irresponsibility; in maintaining its distance from the aggrieved person, in ignoring the problems of its own creation.

 

Shameful: With great shame and much disappointment I am only reproducing here what Late Justice Javed Iqbal has recorded as his experiences as Chief Justice Punjab High Court. (Page 180 Apna Gariban Chak an Autobiography).

“ I have experienced cases where Judicial Officers have delayed the disposal of case or appeal of young ladies so as to get his wishes satisfied. In this country, if any lady dares to come out to earn her own living she has to ward off ‘wolves’ at every step. In smaller town and localities lady teachers of schools, young lecturers of girl’s colleges, nurses of hospitals etc become targets, in their cases of civil or judicial officers’ sexual harassment. I tried to stop recruitment in the subordinate judiciary of recommendees of Administration and the Govt.

After describing his own laudatory practice he goes on.

“After me, the same method of appointment of recommendees continued and the Advocate General gave arguments in Supreme Court in support of that system”

Much more in the same strain is written in the pages that follow.

 

What I personally experienced as Deputy Secretary Home Government and as Law Secretary then Government of West Pakistan I consider it an insult to a judicial officer and his family to offer him, not security of tenure so necessary for that office but ad hoc appointment of indefinite duration. Similarly, surprise inspection of courts which is translated as ‘chapa’ in Urdu and raid in English is outright self-imposed indignity on the courts. It is time that Superior judiciary learns that Judiciary is monolithic; if it is deficient at the base the top cannot be free of taint.

Working Environment:   Human Resource Management for administering the law receives no attention.  The result is that persons not exposed to the program, not equipped with the know-how, not even initiated in the basics, come to administer the law.  They administer it not according to the scheme or the requirement of the law but like any other bureaucratic function to which they are accustomed. Further, it takes years on account of various constraints to put the implementation machinery in place.  It is done only when either political pressure is exerted, or courts intervention takes place. there is no provision in the law for monitoring, evaluation, and review of the performance under the new law or for publishing meaningful annual reports on the subject, for eliciting on a continuing basis the public opinion with regard to it. Even if it is there it is always ignored, avoided, considered as useless.

Conclusion

In a lighter mood but not without lessons to be learned and our practices and performance not to be reexamined. I go back to the year 1979. On the Commission on Eradication of Corruption I had a member, Barrister-at-law, well connected to the gallantry of the country without their physical stature and girth, but a soft-spoken thorough gentleman. I asked him why he left legal practice. He said “For two reasons. The first was that at least twice a week within ten minutes of commencing my argument, one or another judge on the Bench addressing me would say ‘You are in Pakistan, leave your UK accent and argue in Pakistani accent’. This upset and disturbed me to the extent that I had to give up the practice. The second reason was that I got constructed a house in Karachi with a cottage like an appearance from outside but inside as good as any. The litigants seeing the cottage came to consider me a wretched useless lawyer and my reputation was never established on merit”

This brings me to my own retirement. I used to take some time to convince my questioning colleagues that I am a law graduate but never practiced law. The general impression was that a CSP judge was never a law graduate and he got dumped in judiciary courtesy of the British Empire. On retirement, I had difficulty fixing my own fee first for opinion work then as an arbitrator. No guidance came from anywhere. I adopted my own modest standard. Then came a brief from a very senior successful lawyer fixing the fee for that opinion work. I considered the fee five times more than what according to my standard I would have charged. Then a thought came to my mind, only a thought, it was probably an act of guidance for protecting and lifting my reputation over and above the ground.   I included this act of the lawyer as one of the most graceful acts of a lawyer of our country to correct, protect and guide an inexperienced retired judge of the highest court in the country.