Law cannot function in vacuum; operating for society it is influenced by its mores and attitudes. As an instrument of social change, the law thus never can be static, it has to change constantly alongwith the changes in the society. Since judges interpret and redefine the laws through their judicial decisions, the Judiciary plays a major role for this change. The demands of the time and society are thus important for judges in the interpretation of the law. UK’s Lord Chief Justice Hewart uttered the famous legal maxim nearly 100 years ago, “Not only must Justice be done; it must also be seen to be done”, indicating that if a legal remedy is available for a party that has suffered some injury, it must be forthcoming promptly or it becomes effectively the same as having no remedy at all. The right to a speedy trial are meant to expedite the legal system because it is unfair for the victim to have to sustain the injury with little hope for resolution. The Hewart phrase has become a slogan for legal reformers who view courts or governments as acting too slowly in resolving legal issues either because the existing system is too complex or overburdened, or because the issue or party in question lacks political favour. Every person who stands before the courts expects a fair trial, a fundamental principle is that a judge or magistrate must not sit on a case in which they have bias. People’s confidence requires among other things that judges are free from bias for or against any of the parties. Everyone has a right to an independent and impartial judge in the determination of their civil rights and obligations or a criminal charge against them. For the benefit of readers my article titled “Judgement Biased is Justice Denied” is appended below:
“On 7 June 2013, Shahrukh Jatoi, son of feudal Sikandar Jatoi and Siraj Talpur from the Talpur clan were sentenced to death for the targeted revenge killing of university student Shahzeb Khan in Karachi, Sajjad Talpur and Ghulam Murtaza Lashari to life imprisonment for aiding the two killers. Succumbing to considerable pressure from the age-old feudal rule of the elite in Pakistan on September 2013 Shahzeb’s parents filed an affidavit pardoning all four accused and requesting their release. Sindh High Court (SHC)’s releasing the culprits on 23 December 2017 sparked countrywide outrage and protests against the abuse of power by the wealthy elite in Pakistan. With the Supreme Court (SC) of Pakistan ordering both cases to be reopened before the SHC on 1 February 2018, the accused persons were taken into custody again. On 18 October a three-judge SC Bench acquitted the four accessed.
To bring justice to the people and reliably establish the rule of law, not only the wording of the laws has to be upheld and considered, but the spirit of the law as well. Forgiving the murderers is certainly not an easy decision for the parents, however their private act of forgiveness cannot undo the law when the judgement had already been announced by a court of law. The letter of the law can be defined to be as it is written, any formal code, rule, regulation, or principle that must be according to governmental mandates or policies i.e. what the law states. These laws serve, maintain, and protect the public welfare in various ways. What is not codified is the spirit of the law, which we define as a social and moral consensus of the interpretation of the letter of the law.
For understanding the relationship between the law, social norms, and fairness in society. Matthew T. Gordon and Dr. Stephen Garcia correctly state in their “The Letter Versus the Spirit of The Law” that it is unfair to violate the spirit of the law, even if the letter of the law has not been violated. The common practices that hold human groups together” social norms act like roadside guardrails on life’s highway, guiding human behaviour through various circumstances.
When behaviour violates social norms with regard to social and moral acceptability the letter of the law is violated. Maryam Nawaz’s tweet on Arshad Sharif’s assassination violated social norms. People may generally think it is unfair to violate the spirit of the law but not the letter of the law, approving punishment for such an offense. Social norms would arguably consider a law against murder to be absolutely legitimate, important, and inviolable, whereas social norms regarding jaywalking would be less legitimate, less important, and more readily violable. On the same analogy of the “wealthy getting away with murder” that protects Maryam Nawaz, Shahrukh Jatoi has been left off on a technicality, whether his act inspired terror or not is not in question, our greater problem is that the superior-most judiciary in the country has condoned murder. Is this according to norms on which a society can function? What happens when we discover those who ordered the Arshad Sharif assassination? Will we let them off on a technicality, the same way that we are letting off Uzair Baloch in murder conviction after murder conviction that he had already confessed to.
Speaking about “Constitutionalism and the role of institutions” Senior Puisne SC Judge, Justice Isa emphasised that one should not undermine that the institutions of the state, and individual characters must be condemned by name for their unconstitutional actions instead of the institutions they belong to. To quote him, “We judge, but you all judge us. I would only request that you do not judge us as an institution because there is both good and bad. Judge us as judges. He further stated “Condemn a judge not the SC, condemn a military general not the institution of armed forces and condemn a bureaucrat not the executive if they violate the Constitution.”While Justice Isa is 100% correct, however in many cases the institutions that allow the excesses must be held accountable the instruments of the institution were used (or more correctly misused).Personally, I really admired Aftab Sultan Chairman ECP because of his pristine reputation. However his bias has left me aghast, if this extraordinary bureaucrat can succumb to personal bias for whatever reason and not deal with everyone equitably, where is the hope for democracy given that he is the ultimate custodian of the electoral vote?
Whoever is in charge of an organization directs and control employees below them, the ladder of authority being the chain of command that directs reporting relationships of employees from the bottom to the top, who should report to who and when. This allows accountability, lines of authority, and the power to make decisions to help accomplish goals. The authority has several important purposes in decision-making (1) Responsibility is one of the major purposes of a chain of command. it ensures that every individual has a role to play and a responsibility to handle (2) Productivity stimulates workflow and smooth management and (3) It provides a smooth flow of information from the top to the lowest level in any organization. If the chain of command is disrupted by questioning the directives publicly, the consequent erosion of authority can create anarchy. There are drawbacks, chain of command tends to give lower-level individuals little or no control, and a dictational attitude may undercut job satisfaction that may result in resentment and/or low motivation. Destructive vilification between colleagues aired publicly tends to destroy the ladder of authority.
I respectfully submit that the confidentiality of due process within the institutions needs to be protected. The public is entitled to be informed, courts do have a PR department that issues official press notes after they have been agreed upon. Justice Faiz Isa has every right to give his opinion on different decisions and procedures, more power to him to do so! However one must respectfully submit that the contents of the letter reaching the media violates this chain of command providing for an orderly flow of affairs and does more harm than good, not only to the person of CJ but also defames the institution of which the CJ is the Head. The SC has an internal mechanism of sorting out disagreements and finding a common stand within the institution without washing one’s dirty linen in public.
Appointed to the Balochistan High Court in 2009 directly from an illustrious career as an outstanding lawyer, and then chosen for the SC in 2014, Justice Isa is no ordinary judge. Expected to take over as CJ of the SC in September 2023 Justice Isa could unfortunately find himself in the same situation. What if those justices elevated (or being elevated) to the SC viscerally opposed by him in the Supreme Judicial Council (SJC) resort to, alongwith other like-minded SC justices, waging “judicial guerrilla warfare”, using the same precedence he has established for making public internal dissent? Mostly devoid of legal education and/or the full facts, the public is enjoying the “Tamasha” with no idea whatsoever of the far-reaching ramifications and consequences of judicial anarchy. For any State to function freedom of speech cannot be made into a licence to erode authority!
