ALONG with tax collectors and policemen, judges have formed part of the government apparatus since antiquity. Their role and status varied in certain times and places they functioned as independent and non-partisan adjudicators of disputes; in others they served mainly as the ruler's instruments and did his bidding.

Closer to our own time, we see that Sir Edward Coke, chief justice of England, was among the first to assert the imperative of judicial independence. “Magna Carta is not the kind of fellow,” he said, “who will take a sovereign.” During a meeting with King James I in the early 1620s he advised that the king could not make judicial decisions contrary to the common law, because while he was not to be under any man, “the king is under the law”. Coke's assertion came to be firmly planted in the English tradition. No government would even consider telling a judge which way to go in a case before him. The idea is taken as a norm in many other societies as well.

Judicial independence has had an uneven trek in this subcontinent, the generality of magistrates and civil judges up to the rank of district and sessions judge are believed to be wanting in depth of knowledge and open to corruption. We will ignore them in the following presentation and instead focus on the higher judiciary, more particularly the chief justices.

Most of them have been known for their impeccable honesty, uprightness, independence, defiance of external pressure and knowledge of the law. They chose to live in “splendid isolation”, aloof even from notables in the outer society. The better known among them were Sir Abdur Rashid, A.R. Cornelius, Hamoodur Rehman, Muhammad Yaqub Ali, Sajjad Ali Shah, Iftikhar Chaudhry, Rana Bhagwandas and M.R. Kayani. Of those who preferred to be on the right side of the government of the day the following come to mind Muhammad Munir and Anwarul Haq, and from amongst the high court judges Maulvi Mushtaq Hussain.

What do we expect from our judges? One's first response is likely to be that we expect them to uphold the law correctly and impartially. That would require them to have respect for the law and believe in its supremacy. The king is under the law, yes, but then so is the judge. He must hold the law higher than any other consideration, especially that of his personal gain or advancement. At this point it may be appropriate to take notice of a possible problem. Judges are a part of the society in which they function. This society, for the most part, does not respect the law as such. It does not consider law-breaking to be immoral. This holds not only for the lower but also the upper strata, including higher civil servants, police officers and generals. One may ask if it is reasonable to expect the judges to be immune to this general tendency.

I have the impression that higher ranking judges are not receptive to bundles of cash that may be offered by one of the parties to a dispute they are to settle. Improper inducements that reach them emanate mostly from the upper reaches of the government itself, not from private litigants. They may take the form of promises of professional advance

ment or threats of career reversals. In most of these cases the government wants the judges to condone or overlook its arbitrary actions involving violations of the rule of law.

In the more critical of these cases the judges have seen fit to invoke the “doctrine of necessity” and validate the action at issue. Thus, they have legitimised the rule by generals who had seized the government, presidents who had dissolved the National Assembly to get rid of an unwanted prime minister and regimes that had banned certain political parties or imprisoned some of their more virulent adversaries.

Susceptibility to improper inducements on the part of a deputy commissioner, superintendent of police or collector of customs is not the same as susceptibility on the part of the higher judiciary. In the former cases the public official's improbity unduly benefits or hurts a single party but improbity on the part of a given chief justice can have the effect of distorting the entire system of the rule of law.

It may be useful to ask also why a man wants to be a judge. Some of those who entered the Indian Civil Service and then its successor, the Civil Service of Pakistan, opted to serve in the judiciary rather than the executive branch of the government where officials were invested with much more overt power to confer or deny benefits to people high and low. A.R. Cornelius, chief justice of Pakistan, and M.R. Kayani, chief justice of the Lahore High Court, were among the most distinguished members of the Civil Service of Pakistan. They felt more fulfilled as judges than they might have working as divisional commissioners or secretaries to the central government.

It may be assumed also that the acquisition of money is not the first priority of those who prefer to be judges. They are learned enough in the law to be able to make tons of money working as lawyers. But they reject that option.

It seems to me that these persons want, first and foremost, to exclude arbitrariness from the conduct of public affairs. They have dedicated themselves to the idea of the rule of law, wish to implement it and administer equal justice to all. They cannot accomplish this mission unless they are willing and able to resist the forces that would seduce them away from the path of righteousness.

Iftikhar Chaudhry, the deposed chief justice of Pakistan, and some of his colleagues did have courage enough to defy a military ruler. They preferred loss of office to capitulation. They have emerged from their struggle against arbitrariness as national heroes. They are regarded as symbol of the Pakistani lawyers' crusade for the maintenance of judicial independence. Justice Chaudhry's reinstatement has become a vital national interest deserving all the support that organs of civil society, including the legal profession, can muster.

The writer, professor emeritus at the University of Massachusetts, is currently a visiting professor at the Lahore School of Economics.

anwars@lahoreschool.edu.pk