Introduction:
The Judiciary is an institution of the highest value in every society and the Universal Declaration of Human Rights (Art 10) and the International Covenant on Civil and Political Rights Art 14(1) proclaim that everyone should be entitled to a fair and public hearing by a competent, independent judiciary.
The rule of law is the foundation of a democratic society. The Judiciary is the guardian of the rule of law. Hence Judiciary is not only the third pillar, but the centre pillar of a democratic State. In a democratic country like Pakistan, where a written Constitution is followed, it is a supreme authority for all citizens and institutions. The authority to interpret the judicial complications is vested in the superior Courts. It is also the prime duty of the Judiciary to oversee that all citizens and institutions including the executive and the legislature act within the framework of constitution and the fundamental law of the land.[1]
Now-a-days the judiciary is subjected to serve criticism with reference to the back log, inefficiency and corruption. No one can justify, if the allegations are correct. The back log is a common problem in countries were adversarial system of justice is enforced. This inherent problem surfaced in Pakistan due to executive’s being prejudice against judiciary and mismanagement of judicial system. Lack of interest in judicial reform, failure to cater the needs of judiciary in consonance with the needs of the growing population and its demands and above all keeping the judicial officers linked with the executive’s ranks and grades. Misery adds to such instances in the fast moving world the people are furiously impatient, so to control all such problems and intolerant behaviour towards the judiciary, there is a dire need to adapt the culture of tolerance in the judiciary and in legal fraternity.
Tolerance is the basis ratherthe fundamental principles of a society where compassion, charity, friendship, mutual understanding and peace are prompted tolerance and which leads to the basic guide lines so laid down for democracy by president Abraham Lincoln of U.S.A. in his address of Gettysburg ( 1809-186562), i.e. Govt. of people, by the people and for the people. This can never be achieved unless the authority so given by the people to rule the country by 51% of the majority over 49% unless we promote tolerance and peace in the society. It is also directly related to the fundamental principle of impartiality without making any distinctions like cast creed, race and ethnic origin.
We must remember that tolerance is created by the adaptability of flexibility in our behavior and attitude so we would have to adapt an attitude of flexibility; to learn to live together. Tolerance is also related to the principle of acceptance of criticism, difference of opinion and good suggestion for a better community living where justice and equality and brotherhood is promoted.
Another important factor for promotion of culture of tolerance is to promote respect for diversity and human dignity and reduce discrimination and intolerance from society, this specifically relates to the principle value, which says explicitly that we should reduce intolerance.
The aim of creating respect for diversity is to create a basis for peaceful togetherness. In diversity, we find unity or a common platform, and we cooperate to solve any issue in a peaceful manner.
Tolerance at the State level requires making of just and impartial legislation, law enforcement and its judicial and administrative promulgation without discrimination. It also requires that economic and social opportunities be made available to each person without any difference of cast, creed, religion and partism.
For tolerance, one has to be open-minded for pursuit of social justice and emphasis is laid upon the values of equality and social concord. The hallmarks which the father of the Nation, Quaid-i-Azam Muhammad Ali Jinnah propounded regarding tolerance is:[2]
“Freedom of choice alone does not guarantee justice. Equal rights are not defined only by political value. Social justice is a trial of freedom, of equality, of liberty i.e.
· Justice in political liberty
· Justice in economic independence
· Justice in social equality
We can not promote tolerance if we don’t know, where and in what circumstances the intolerance comes from; generally these are the following root causes of intolerance:
Ignorance : a lack of knowledge of understanding, or a tendency to see the world in black and white with no grey zones. With this attitude, I am convinced that what I know is the truth and that everyone else is wrong. “You’re either with us or against us” that kind of ignorant attitude creates intolerance in the society.
Another cause is adaptation of a bias and prejudice attitudes towards community if we are really honest with ourselves, we must put into the shoes of other before enforcing our whims and wishes upon other.
There is another important cause for intolerance is that we want to affix our responsibility for our wrong doings to other shoulders, where the intolerant attitude would come from.
Stress is another factor. We are more likely to be intolerant when we are stressed, so we should learn how to control the said stress situations by adapting tolerant behaviour.
Corruption is one of the most important factors to create injustice, and injustice at a single place is a threat to justice everywhere. It was said by the one experience judge of Superior Courts that, “I will never take into cognizance any allegation that is false and meant to harass any judge. But I’ll accept any logical allegation of corruption, and will have the allegation probed by a competent judge”. Corruption in judiciary, the bar seems to be mainly responsible, which is becoming unmanageable and heterogeneous on account of discriminative recruitments.
Delay in disposal of cases :Generally it has been observed that delay in disposal of cases by the Courts frustrates the purpose of justice the judiciary is facing the threat of mounting arrears and long delaysA man’s hopes andaspirations, often even his life, are involved in a case he litigates. He must wait and wait, throughout the trial Court where he gets a decision after eighth to ten years. There is appeal in the High Court which takes another seven to eight years; and finally, the greatest tragedy of the system is that in the Supreme Court a civil appeal, in the ordinary course, would take fifteen years for final disposal. The system can yield results only if we abide by the norms of the system. Delay causes dismay, and creates disillusionment in, all those who knock at the doors of the Courts. The rule of law and sanctity of judicial proceedings do not depend merely on the Courts and the law enforcement agencies. They need a general climate of order and discipline, of tolerance and good behavior.
In recent year’s scandals about lack of integrity have besmirched and dishonored the reputation of some judges at the highest level as well as lower levels. It has affected the image of the judiciary as a whole even though the majority of them are persons of great integrity and probity.
Lack of Judicial training fundamental judicial reform cannot be successfully carries out in the absence of trained Judges, having knowledge of law, fully cognizant of procedures and having the capacity to conduct judicial proceedings in an effective and efficient manner. The Judge must, therefore, be trained not just in the legal discipline but also know modern methods of Court administration. There is dire need to take bold and dynamic steps to reform and care for the judiciary, to expect any improvement will be a day dream.
Training should be imparted to the judicial officers in accordance with the tenants of Islam. They should also be made familiar with the rules of case flow, case management and judgment writing, more particularly to enable them to make the decision immediately on conclusion of the submissions made before them. During the course of training the judges are taught the methods of applying the law and the case law to a particular case to grant appropriate and deserved relief. Also they should avoid making decisions on the face value of representatives of litigants and avoid meetings with unconcerned persons in their chambers. Refresher courses should be introduced to update the judicial officers of advanced knowledge and the methods of deciding the cases without loss of time.
There is a dire need to apply the ZERO TOLERANCE POLICIES in the judiciary as well as for legal fraternity , basically it is the policy of applying laws or penalties upon even minor infringements of a code in order to reinforce its overall importance and enhance deterrence or the zero tolerance is a concept through which we design some policies in any organization to control any abrupt scenario or illegality which would be responsible for threats to demoralize and decline the status of that organization. These zero tolerance policies are continuously being adapted nationally and internationally. The areas of the application are:
1. Zero tolerance and harassment by bullying in the workplace.
2. Zero tolerance in the use and control of narcotics.
3. Zero tolerance in driving.
4. in all educational institution
ZERO TOLERANCE IN JUDICIARY:
The policies, guidelines and enactments have been done for the proper application of zero tolerance in judiciary by establishing the Supreme Court Judicial Council and by legislating the Judicial Standards and Accountability Act, 2010. The purpose of this enactment seeks to:
Ø Lay down judicial standards
Ø Provide for the accountability of judges
Ø Establishes mechanisms for investigating individual complaints for misbehavior or incapacity of a judge of the Supreme Court or High Courts.
Misbehavior in Juxtaposition to good behaviour, as a constitutional tautology, will not support impeachment but a misbehavior which is not a good behaviour may be improper conduct not befitting to the standard expected of a Judge.
The bad behaviour of one Judge has a rippling effect on the reputation of the judiciary as a whole. When the edifice of judiciary is built heavily on public confidence and respect. The damage by an obstinate Judge would rip apart the entire judicial structure built in the Constitution.
Bad conduct or bad behaviour of a Judge, therefore, needs correction to prevent erosion of public confidence in the efficacy of judicial process or dignity of the institution or credibility to the judicial office held by the obstinate Judge. When the Judge cannot be removed by impeachment process for such conduct but generates widespread feeling of dissatisfaction among the general public, the question would be who would stamp out the judge? The judge who would impress upon the Judge either to desist from repetition, or to demit the office in grace?[3]
It has been observed that some judges while extending their duties do not follow the norms and ethics as required by them. They must consider their status that they are the vertebral column of judiciary the judiciary is manned, controlled and regulated by a judge, therefore, a judge should possess all the qualities and attributes which makes this position respectable, honorable for creating public trust and confidence in him. It is for the judge to first prepare himself morally and mentally capable to hold the post. No one is a born judge but the traditions, learning, knowledge of humility, courage and the resolve to do justice impartially and without fear or favour, affection or ill-will make a judge.
Golden Rules of Islamic History:
Islamic history is full of golden rules, and traditions of justice, impartiality and independence which lay down that in the administration of justice no distinction should be made between the rich and the poor, ruler and subject and noble and ignoble. In this regard the letter of Hazrat Umar (RA) and Hazrat Ali (RA) has been quoted frequently. I will refer only few principles about the selection of judge:
Ø First and foremost is to select and appoint people of excellent character, superior caliber and meritorious record.
Ø Judge should listen patiently and diligently. Ponder over the question then announce the judgment.
Ø Treat the people equally while doing justice in Court so that justice should be seen to be done.
Ø Implement the order promptly because order without implementation is a farce.
Ø Abundance of litigation and complexity of cases should not make judges lose their heart.
Ø They should not be corrupt, covetous or greedy.
Ø They must attach greatest importance to reasoning, arguments and proof.[4]
For application of zero tolerance policies in the judiciary for the judges have already been discussed in the National Judicial Policy Making Committee (NJPMC) by approving additional code of conduct for judicial officer which are required to them to maintain the decorum of the Court in a proper manner these are as under:-
1. To be God fearing, law abiding, abstemious, truthful wise in opinion, cautious and forbearing, patient and clam, blameless, untouched by greed, completely detached and balanced, faithful to his / her words and meticulous in functions.
2. The officer should not show any fear or favour to any party before him and their lawyers both in his judgment and conduct.
3. He should avoid mixing up with people, roaming in hotels, markets and streets except in dire need and should avoid rage.
4. He should have command and control over the proceedings in the Court and should be consistent in his judgment.
5. He should also be Courteous and polite, but not weak towards the litigants and their lawyers and should maintain decorum of the Court.
6. He should always endeavour to decide measures to ensure speedy justice and have effective control over the staff of his Court without being rude, rough or humiliating.
7. The judicial officer should be punctual while taking or leaving his seat and should be dressed in prescribed uniform and seated in a dignified manner but not so as to look a proud man.
8. He should avoid hearing cases, receiving guests or his colleagues in the retiring room and should avoid hearing one party or his lawyer in the absence of the other, except in case of ex-parte proceedings or in complaints cases.
9. He should not hear those cases in which he, his near relatives or close friends have got any interest and should not privately advise any of the parties so that it becomes a favour to the prejudice of the other party
The prevailing conditions in judicial administration which are product of adversarial system have led to a shift from formal system for redress of citizen’s grievances to move informal ways of resolving disputes. Now world over Civil Justice System is heading towards in-formalism where grievances are to be resolved before they harden into disputes. It is inherent in man to create conflicts and also to resolve the disputes. Now it is for the people to choose formal or informal system. Even in informal system the judges can play important role in resolving the dispute. But such initiative by the judges is fraught with serious consequences and crises of credibility.
The standards of judicial behaviour, both on and off the Bench, are normally high. The conduct that tends to undermine the public confidence in the character, integrity or impartiality of the Judge must be eschewrd and avoided.
I have recently read the book of Legal and Professional Ethics by P. Ramanatha Aiyar, an Indian writer who had written the golden principles for smooth running of judiciary with legal fraternity ,these ethics would also be very helpful to promote the culture of tolerance in present scenario of the judiciary:
GOLDEN PRINCIPLES FOR THE PROMOTION OF CULTURE OF TOLERANCE IN JUDICIARY
§ Relations between the Bench and the Bar:
It cannot be forgotten that members of the judiciary are equally members of the legal profession. A judge and an advocate discharge complementary functions in building up the edifice of justice. Thus one is not alien to the other.
§ Conduct of a Judge towards the lawyer:
The Bench should not disregard the privileges of the Bar. The Judge is entitled to insist upon the dignity of his office and upon the way of speech and manners towards him. But the Bar cannot be uncivilized, rude or disrespectful towards the Judge. The Judge also should not be impatient and inconsiderate towards the lawyer.
§ Duty of the Judge to respect privileges of the Bar:
The instinct for fearless decision in the Judge is on account of the sense of independence of the Bar. A judge may admonish a lawyer in a dignified manner where his conduct calls for chastisement from the Court. Duty to the Bar, duty to himself and duty to the public demand civil conduct on the part of the presiding Judge are very important factors in this regard.
§ Judges/Benches should not keep aloof from the Lawyers/Bars:
Usually some Judicial Officers suffer from an obsession as if they are free with the members of the Bar they are liable to be misunderstood and that it may even derogate from their own dignity. They generally avoid all kinds of civil and social contacts. This enforced exclusiveness on the part of Judges has a beneficial effect even on the administration of justice. Lawyers are not as a class dangerous to move with; they are not inferior to him in status; free movement between lawyers and Judges will make their work in Court easier. No Judge can fully discharge these duties without the cooperation of the Bar.
§ Interrupting the Counsel:
Interruption from the Bench may be as under:
(1) Questioning with a view to elucidate a position, which should be welcome by the Bar so that the Bar may clarify the point
(2) Some Judges go on putting questions to the lawyers till either the lawyers admit defeat or the Judge feels convinced by the answers given. But the Court should consider that the Court-room is not converted into a debating forum.
§ Cutting short the arguments:
A wise Judge legitimately cuts short unduly long arguments if he is satisfied that the counsel was merely spinning arguments.
§ Studying case records previously by the Judge:
If the Judge goes through the case record prior to hearing arguments, it saves time by the Judge putting his doubts to both counsels and getting their replies thereto. It shows that the Judge had formed an opinion about the case except on the points requiring clarification.
§ Courtesy, kindliness and Patience:
The above are the characteristics of a Judge. A Judge could not be impatient while the case is being argued. He must understand that the lawyer arguing before him is paid by his client and so he had made a deep study of the facts and law. As such, a patient hearing is expected from the Judge.
It is very well said by someone that
جب منصف کی آواز سائل کی آواز سے بڑھ جائے تو سائل کو انصاف کی امید کم رہ جاتی ہے۔
More so, in the case of junior members of the profession, Lord Justice Fry said: to give a receptive listening to each side and when hearing young counsel. How great the pleasure a kind word from the Bench has been narrated. BACON (Bacon Nathanial (1647-1676) American Colonist born in England led a rebellion to gain Governmental reforms.) says: it is generally better that the Judge should err on the side of indulgence in this matter than that he should endeavor to hold the reins too tightly. After all, the administration of justice is necessarily but an approximation towards that ultimate and absolute justice which may come with the millennium but never before.
§ Dignity and stability of Government:
The dignity and stability of Government in all its branches, the morals of the people, and every blessing of society, depends so much upon an upright and skilful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, so that it may be a check upon both, as both should be checks upon that.
Judges, therefore, should always be men of learning and experience in the Laws, of exemplary morals, great patience, calmness and attention; their mind should not be distracted with jarring interests; they should not be dependent upon any man or body of men. To these ends they should hold estates for life in their offices, or, in other words their commission should be during good behavior, and their salaries ascertained and established by law.[5]
§ Judicial Activism:
A Judge should not be a mere passive spectator of the drama that is being enacted before him, but he should take an active part therein. Sometimes It is said that a Judge should not enter the arena conflict and he should always keep himself out of the ring and allow the field open to the contestants. The theory of Judicial Activism has been introduced by some Judges of the Supreme Court of the USA the phrase being coined by Justice Douglas. In Pakistan Justice A.R Cornelius has performed his duties well in this regard as being a Chief Justice of Pakistan. It is true that a Judge should cultivate objectivity of mind and as far as possible; he is not to enter the arena of conflict. Sometimes, however, he is presented with an extraordinary phenomenon, as for example, there is a poor widow who is pitched against an affluent and unscrupulous person who is able to suborn witnesses and engage the best talents of the Bar. When the Judge finds that all the big guns are heavily loaded against the woman, then it is his bounden duty to intervene and to try his level best to see that justice is done. This is what is meant by Judicial Activism.
While I was studying the book namely Judges and Judicial Accountability by Cyrus Das K. Chandra, President, Commonwealth Lawyers’ Association Kaula Lumpur, manyimportant aspects have been very well elaborated and discussed by giving the reference of Asia pacific conference in which “a Beijing statement of principles of the independence of the judiciary in the LAWASIA region” had been approved for maintaining the good governance and for proper application of zero tolerance policies in the judiciary the following two important aspects were given:
§ Relationship with the Executive:
1. Executive powers which may affect judges in their office, their remuneration or conditions or their resources, must not be used so as to threaten or bring pressure upon a particular judge or judges.
2. Inducements or benefits should not be offered to or accepted by judges if they affect, or might affect, the performance of their judicial functions.
The Executive authorities must at all times ensure the security and physical protection of judges and their families.
§ Emergency:
Some derogations from the independence of the judiciary may be permitted in times of grave public emergency which threaten the life of the society but only for the period of time strictly required by the exigencies of the situation and under conditions prescribed by law, only to the extent strictly consistent with internationally recognized minimum standards and subject to review by the Courts. In such times of emergency the State shall endeavor to provide that civilians charged with criminal offences of any kind shall be tried by ordinary civilian Courts and detention of persons administratively without charge shall be subject to review by Courts or other independent authority by way of habeas corpus or similar procedures.
The jurisdiction of military tribunals must be confined to military offences. There must always be a right of appeal from such tribunals to a legally qualified appellate Court or other remedy by way of an application for annulment.
ZERO TOLERANCE IN LEGAL FRATERNITY:
The zero tolerance policies have already been discussed in detail for legal fraternity by enacting the legal ethics under Legal Practitioner Act 1926 in which different conducts of advocates have been elaborated in very professional manners such as conduct with regards to other advocates conduct with clients, conduct with regards to the public in general and duty to Courts.
A self-respecting independence in the discharge of professional duty without denial or diminution of the Courtesy and respect due to the Judge’s station is the only proper foundation for orderly personal and official relations between the Bench and the Bar.
Quaid-E-Azam Muhammad Ali Jinnah is a Role Model for us, who won the case of Pakistan due to his reputation of integrity on first as a lawyer and later as a politician, was his best asset according to him. “A lawyer, who does not acquaint himself with philosophy, history and other branches of knowledge, is a half lawyer. Jinnah’s conduct of cases is marked by the research and scholarship undertaken by him on the subject under issue.
Reputation of a lawyer is his greatest asset. But it is proportionate to the integrity established by him in accepting the brief, in its preparations and presentation. A lawyer who is not correct in his deal with the client loses respect as a man, even it he is brilliant as a lawyer. When a client offered Rs.5,000/- for conduct of a case, Jinnah insisted to receive only Rs.1,500/- because the case was over in three days and Jinnah then was charging Rs.500/- per day. The client saved his Rs.3, 500/-. But Jinnah earned respect.
There are a few cases that Jinnah lost but he earned the respect of his client and admiration of the Judges before whom he appeared. A lawyer of integrity presents his case fearlessly. When Jinnah was expounding a point of law before a Full Bench in Bombay and the impatient Presiding Judge, a Britisher remarked, “the Court has a little knowledge of what you are attempting to submit” and he wanted Jinnah to leave the point, Jinnah retorted “little knowledge is dangerous my Lord..I am therefore, going to explain in details”. The Full Bench had to listen to him to the end, resulting in the case being decided in his favor.
I am tempted to refer to one case quoted by Hector Bolitho where Jinnah had lost. However, Jinnah told his client that the judgment should be appealed because it was wrongly given. The client who was unable to pay the expenses much less the fees expressed his inability. Jinnah ordered his clerk to accept the case and incur the expenditure. On appeal Jinnah won the case. The client rushed to the office of Jinnah and wanted to pay him (as he said he has now some resources). Jinnah congratulated him and declined his offer.
It was Lord Denning a legend in his lifetime, who while addressing the lawyers in Lahore had said that “lawyers are of two types, a mason or an architect, the later type are those who besides being acquainted whit logic have knowledge of history, philosophy and language of the Court Jinnah was an architect lawyer”. [6]
This is the duty of Legal Fraternity comprise and encompass Courtesy and respect to the Courtfor the sake of the temporary incumbent of the judicial office, but for the maintenance of supreme importance of the judiciary, Lawyer can be deferential without being abject; and independent and fearless without being disrespectful. The greatest amount of firmness can co-exit with an equal amount of grace and politeness. ‘Neither truckle nor be truculent’–expresses the duty and the right. Nothing is more destructive of public confidence in the administration of justice than a disregard by the Court of the privileges of the Bar or incivility, rudeness or disrespectful conduct on the part of counsel towards the Judge. Even when the Judge, forgetful of the fact that the lawyer is an officer of the Court and a counselor to it, treats him with disrespect, he should value himself too highly to pay the Judge back in the same coin. A firm and temperate remonstrance is all that a lawyer needs to make.
The lawyer must never display temper in Court because of an adverse ruling or decision. The temptation to show the disappointment, to be sharp in retort and impatient in manner will be strong; but the lawyer should remember that it is highly unprofessional to yield to such temptations. It is much easier to be a hero than a gentleman. When you are right you can afford to keep your temper, when wrong you cannot afford to lose it.
A lawyer should be straightforward and respectful and should not try to create breeze in Court. He should assist the Judge in the performance of his duty.
He should never try either to misstate facts or mislead the Court. His argument should be pointed, clear, precise and concise. He should try to win the confidence of the Court.
(i) He should have also strong sense of humour, and pleasing manners, to relieve otherwise, dull and drab atmosphere of law Courts is created accordingly.
(ii) Oration has very little place in sound and the advocacy. It has the same place as the marked-down tag on the suit of clothes at a closing at sale. It looks nice, but it means little. As in the past, so in the present, the Bar takes a direct and responsible part in the creation and development of our law by legal decisions. A lawyer should be regarded ass a co-operator in the search for truth: and he may be and ought to be, a powerful instrument for the administration of justice.
(iii) He should always remember that precedents are more efficacious than arguments: (Valindiora sunt expla quam verba; el plentus opere docetur quam voce). Even if there is any decision against him, it is the duty of the lawyer to disclose it. He may later on distinguish it on the facts of a particular case, or even contend that the decision does not lay down sound law; if he does so, he will win the esteem of the Judge.
(iv) Above all, the lawyer must be tactful, what exactly is meant by tact? Essentially it is thoughtfulness or consideration for others. It is that quality that steers us through life, hurting, humiliating, and inconveniencing others as little as possible. Tactfulness is really a habit of mind, which can be developed. We shall become tactful as we remember to do, or refrain from doing, certain things; for tact is simply that, practically speaking. Without doubt, this subtle, desirable quality is the very lubricant of harmonious living.[7]
Lawyer has to be a gentleman first. His most valuable asset is the respect and goodwill he enjoys among his colleagues and in the Court. No one expects of lawyer to be subservient to the Court while presenting his case and not to put forward his arguments merely because the Court is against him. In fact, that is the moment when he is expected to put forth his best effort to persuade the Court. However, if, in spite of it, the lawyer finds that the Court is against him, he is he is not expected to be disCourteous to the Court or to fling hot words or epithets or use disrespectful, derogatory or threatening language or exhibit temper which has the effect of overbeating the Court. Cases are won and lost in the Court daily. One or the other side is bound to lose. The remedy of the losing lawyer or the litigant is to prefer an appeal against the decision and not to indulge in a running battle of words with the Court. That is the least that is expected of a lawyer. Silence on some occasions is also an argument. The lawyer is not entitled to indulge in unbecoming conduct either by showing his temper or using unbecoming language.
A member of the Bar undoubtedly owes a duty to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client. He may even submit that a particular order is not correct and may ask for a review of that order. He must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute. Scandalizing the Court is really polluting the very fount of justice; it brought into disrepute the whole administration of justice.
Recommendations and suggestions:
Legal professionals have to face cases of conflict of interest because an essential element in the professional client relationship is trust. Clients trust that the professional will dedicate all his or her efforts to the relevant service without interference from other pre-occupations. The over-zealous pursuing of clients’ interest may sometimes lead to conflicts between a judge and a lawyer so there is a dire need to promote the culture of tolerance in judiciary by following the guidelines as mentioned below:
i) Judges should remain patient during Court proceedings with lawyers. They should avoid giving hurtful remarks.
ii) Judges may impart stern admonishment but should not chastise parties or lawyers because:
“When the only tool you have is a hammer, every problem looks like a nail”.
iii) Courts by necessity are adversarial in the common law tradition. Concepts like win/lose, right/wrong are built into the system. Any language that perceives difference as an opportunity for growth, an opportunity to learn about one another and facilitates such growth and the consequent understanding and acceptance of another is going to contribute peace in society.
iv) The Court and counsel should interact in a way that provides a pattern for the client as to how to behave as opposed to how not to behave.
v) If the client instructs the advocate to proceed in a way which offends his sense of propriety, he may decline to do so provided he explain his rationale or invite the client to other counsel.
vi) Judges and lawyers alike should guard against gender bias. Especially in family suits, if the Courts want to have respect for all litigants and more importantly want to avoid continuous bitterness and animosity between parties once resolution occurs, it is presumed that it could go a long way to taking some modest steps to articulate respect and understanding for all parties.
vii) Counsels can educate the clients to think in terms of brainstorming many options towards mutual agreements when thinking about a settlement to reframe the role of the judge into a coach helping towards a consented outcome.[8]
viii) Disciplinary action should be quickly taken and concluded against the delinquent judicial officers and the support staff. In particular, against those connected with drug mafia should be awarded stern punishment to serve as deterrence and to set an example.
ix) Introducing pertinent policy / strategy at college and university level should raise standards of legal education higher.
x) The members of the Bar, particularly office bearers of the Bar Associations and Bar Councils should take upon themselves the responsibility to see that all elements spreading the tentacles of the corruption are chopped off.
xi) The Judge should be careful about his behavior as he is the bastion for people to reap the fruit of democracy, liberty and justice as well as the antithesis rocks the button of the rule of law as it is said nation falls when judges are unjust.
xii) A new syndrome has recently developed among the lawyers i.e. of embarking on strikes for remedying any and every grievance – sometimes even for a demand for transfer of a particular judicial officer on whimsical grounds. Sometimes strikes are resorted to as a show of solidarity on the arrest or even on a registration of a bonafide case against a member of the bar so such type of strikes, litigant faces difficulties which is also the big factor for intolerance behavior as adapted by the litigant so it is suggested that the culture of strike should be condemned by the bars for smooth dispensation of justice.
xiii) That now- a- days it has been observed that the bar councils are being highly politicized and sharply divided into groups, it is suggested that the institution of a legal Ombudsman be established. This institution should remedy the failure on the part of the bar councils and other professional bodies. In the event of the disciplinary bodies not acting effectively, the legal Ombudsman should take over the investigation of complaints and dispose of the same as per law.
xiv) It is suggested that we must consider on the subject of accountability of lawyers and judges is, the dignity of the Court is best served by keeping dispensation of justice as the paramount objective on both sides of the bench. We, the lawyers, and the judges are here to serve justice, equity and fair play and the first charge on us is to ensure that our acts be just and equitable and result in fair play for all.
xv) A lawyer must participate to promote the culture of tolerance and he should not be involved in violence or injury to the person. The lawyer’s responsibilities are greater than those or private citizens. A lawyer should avoid being a party in any type of litigation even as probono public. He should not file any case or writ petition in his own name and act or plead the case of his own for his personal gain or publicity and also avoid while arguing his case by playing with the gallery to impress his client or persons attending the proceedings.
xvi) Striking of a balance between the progressive outlook and the present social milieu has to be at the pinnacle of the mental pyramid.
xvii) Judicial training is a most essential component of the system of administration of justice. Indeed fundamental judicial reform cannot be successfully carries out in the absence of trained Judges, having knowledge of law, fully cognizant of procedures and having the capacity to conduct judicial proceedings in an effective and efficient manner. The Judge must, therefore, be trained not just in the legal discipline but also know modern methods of Court administration and case management.
xviii) People respect the law and have confidence in Courts. They want the laws to be effectively enforced and equally applicable to all. They expect the judiciary to be a neutral, impartial, and most importantly, an independent umpire for dispensing justice and settling their disputes so the judges should be very careful and perform their duties in accordance with law.
xix) As developing societies, we have to survive, and not just survive, but excel in performance, so as to be able to attract investment, increase trade and commerce and enhance the pace of economic development. We could do so only if we are conscious of the fact that we need to modernize our laws in a manner to cope with the challenges of modern times and requirements of present day conditions. We need also to reform our system of administration of justice from time to time to become more efficient and be able to come to the expectations of the people by expeditiously settling disputes and resolving conflicts.[9]
CONCLUSION:
Bench and Bar both are involved and concerned with the dispensation of justice, we must always change, review, rejuvenate ourselves; we must not immune to stiffness. The tolerance is the virtue that makes peace possible by adapting a dynamic process of cooperation among all states and peoples founded on a respect for freedom, independence, equality and human rights, and a fair and equitable distribution of resources to meet the needs of all peoples.
The culture of intolerance, hatred and frustration can only be eliminated with the realization of justice in its true sense by adapting the Guidelines, Enactments and the professional legal ethics. We must understand that both the judges and lawyers are accountable at their respective forums .We the lawyers and judges are here to ensure justice, equity and fair play and our prime duty is to ensure that our acts must be just and equitable and the results in fair play for all.
Finally, I must appreciate, congratulate and thank the leadership of Supreme Court of Pakistan, the Hon’ble Chief Justice of Pakistan Mr. Tassaduq Hussain Jillani and the Chairman of the Organizing Committee as well as all other members for their untiring efforts to set up this Conference on very important topic, having the object to improve the culture of tolerance in the judiciary. I have no doubt that exchange of information and material through the seminars and conferences would greatly be facilitated through the task of learning from each other’s experiences and expertise to strengthen and improve the performance of the judicial system nationally and internationally.
— Dr. Raana Khan ASC
[1]. From book a code of legal ethics at Page No.347 by P.Ramanatha Aiyer’s.
[2]. Commencement address of Mohtarma Benazir Bhutto to Harvard University, Harvard-8th June 1989.
[3]. From book of legal & professional ethics at Page No.346 by P. Ramanatha Aiyer’.
[4]. From the article the role and responsibilities of judge during murder trial caused by firearms injuries and its important aspects while recording the evidence and passing the judgment. By Dr. Raana Khan.
[5]. From book of legal & professional ethics by P. Ramanatha Aiyer’.
[6]. From the article on Quaid-e-Azam as a lawyer by S.M. Zafar, Senior Advocate.
[7]. From book of legal & professional ethics at page 342 by P.Ramanatha Aiyer Justice Raj Kishore Prasad.
[8]. Regional seminar justice for all impunity for non 9th to 11 sep 2011 Lahore Pakistan role of lawyers and judges during internal conflicts Hon’ble Chief Justice of the Lahore High Court Mr. Ijaz Ahmed Chudhry.
[9]. From the article Judicial System, Administration and Training in Pakistan as addressed by Mr. Justice Irshad Hasan Khan, Chief Justice of Pakistan at Judicial Federal Academy Islamabad.
