Duty of the Judges: Upholder of Rule of Law or the Rule of Justice?

This writing is an opinion on the role of the judges in our legal system. This opinion is specific to its topic i.e. whether it is the duty of the judges to uphold Rule of Law or to uphold the Rule of Justice. It also seems that these two concepts are inherently the same and share some key aspects. This writing will begin with an attempt to define these two concepts and follow up with the judicial stance or assertions made in Pakistan’s legal and judicial system by distinguished individuals. Lastly, the writing will conclude with the writer’s opinion as to what should be the role of judges in any or specifically, in Pakistan’s judicial system.

To begin with, it is a lengthy enterprise to determine the answer of the question, “what is Rule of Law?” At one end, there is ambiguity as to what law means. For some, there is no answer, and for some there are numerous answers, and the remaining people either try to define it through its characters or through its objectives. However, in my opinion, such a word, has no obvious or universal answer. It is the same way one asks the question, “what is the meaning of the word ‘meaning’?” The very first attempt will probably begin with, ‘meaning means …” Similarly, as to the definition of the law, the answer may be what W.H Auden stated, “Law is the law is the law.” Hence, it is better to admit that law is, with no obvious, clear or determinate answer.

Coming to the point that what is Rule of Law, this phrase also has various definitions and interpretations. Some define Rule of Law according to the procedural aspect of the law, whereas some define it according to substantive aspect. From the procedural aspect, Rule of law is intended that a law is valid law, if it has passed through the proper legal procedures. For example, in a jurisdiction if the legal procedure is that a law must be passed through the Provincial Assembly or National Assembly , and the procedure has been complied with, then such an enactment is a valid piece of law. Hence, in such a case, it will be right for the Judge, to follow that piece of law, even if it seems to do injustice in the given circumstances of the case.

On the other hand, the substantive definition of the Rule of Law, requires that the law is only valid, if not only it complies with the procedures as required , but also must be one which protect the rights of the individuals. Hence, if a law which is passed by the legislature yet jeopardises the inalienable fundamental or Constitutional rights of the individual, the court will not uphold that law,and will consider it as against the principles of Rule of Law.

After defining these two principles or conceptions of the Rule of Law, it is important to see that in our legal system, which conception or notion of the Rule of Law is being followed or should be followed. The answer to this question is very uncertain, because, at one end, we can find numerous judgements, quotations, and conferences wherein the judges and the lawyers are promoting the interests of the individuals. Under such laws, and pronouncements, the judgements are focused upon interpretation of the constitutional rights, enshrined under the Constitution of the Islamic Republic of Pakistan, 1973. The same trend also follows giving preferences to the rights of the citizen over the executives’ promulgation. In the same instances, cases wherein equitable maxims, remedies and statutory interpretation has been used. These judgements cloak the law in a way that dispensation of justice becomes possible, even if not apparent from the law.

On the other hand, the former Chief Justice of Pakistan, Mr. Asif Saeed Khosa, was adherent of the view that the judges are under a duty to do justice in accordance with law. In other words, it is duty of the judges to uphold the law, even if they do justice or not. Similar views have been promulgated in few other judgments as well. However, if courts are under a duty to apply the law, even if they seem to do justice or not, then even the concept of associating law with justice will become fragile.

In Pakistan, judges are referred as Justices. Being a Justice means that he or she is under a duty to dispense justice and to provide it to all individuals. They are under a duty to interpret the law in a way which will do justice by law. Hence, Rule of Law, for a judge, must be rule of Justice. If justice is not served, then Rule of Law is of no use. Rule of Justice is not a widely used and acknowledged term. Rule of Justice means, that no law should be applied if it is not resulting in justice for the parties. This gives discretion to the judges, to decide the cases without any shackles. Admittedly, at the cost of certainty. But there is no benefit in having certainty if that results in injustices. Having justice while keeping certainty is a hallmark of an efficient legal and judicial system.

Rule of Law and Rule of Justice may share some features, or for some, may be the same. However, if they are to be equated, then this must be inferred that law is equal to justice. In other words, injustice is not a law or vice versa. If this the case, then we will go back to the jurisprudence of St. Augustine of Hippo, who stated that an unjust law is not a law. It is feature of the law, or a just law, that it does justice when applied. This will mean that there is a duty on the legislature to make laws which are in accordance with the principles of justice and serve the interests of justice. At the same time, it is the duty of the judges to uphold the just laws, interpret them as to do justice. It is their duty to do justice and reach equitable solutions. If they fail to do justice, then they must not be called Justices. The person who applies the law, plays with it, is a lawyer. Whereas a person, who uses the law and applies it to do justice is a Justice.

In the light of the above, the writer opines that it is the content rich school of thought concerning the Rule of Law which is to be followed. The content rich or right conception of the Rule of Law is better associated and linked with the Rule of Justice. It seems Rule of Justice is a necessary element of Rule of Law. Unless there is Rule of Justice in the society, the confidence of the people in Rule of Law cannot be strengthened. In addition to it, the judge must also know that there is no Rule of Law if there is no Rule of Justice. Justice is served if the weaker is protected. The law is a shield, which protects the weak in the society. The demand of justice is necessary if the system must work, otherwise, it will halt one day. Technicalities are not to be followed, when they hit the merits of the case. Hence, Judges ought to be upholders of the Rule of Law, which brings the Rule of Justice