The role of a judge

The recommendation of Babar Sattar’s name by the Judicial Commission of Pakistan for appointment to the Islamabad High Court led to some debate about what makes a good and impartial judge.

There are those who are clearly of the opinion that an impartial judge is one who is entirely neutral in terms of his/her expressed opinion, stance, demeanour and conduct. They cite past clients of the aspirant to pinpoint alleged political bias and also state that someone who is an influencer, public opinion maker, as well as constantly in the public eye, may not be capable of being neutral in decision-making whilst on the bench. In addition to this, it has also been stated that someone who is ‘progressive’ and ‘liberal’ should not be allowed on to the bench in light of the Islamic nature of the constitution.

Interestingly, the entire discussion about whether someone can or should be a judge seems to shy away from acknowledging the paramountcy of competency as a factor to be considered in recommending any candidate. Although it must be acknowledged that competency alone cannot be the only factor in determining whether someone may be a judge or not, denial of such an opportunity for factors other than competency must always be an exception rather than the rule.

In Babar Sattar’s case, competency was assumed to be present, but alleged bias, possible conflict, and potentially progressive agendas were premised as sufficient grounds to override the merit of his recommendation. If looked at deeply, all of the aforementioned grounds were seemingly premised on the detractors’ fundamental disagreement with his opinions rather than any controversy in relation to his integrity.

It must be appreciated that having or rendering of an opinion does not in and of itself create a situation of conflict, especially if the judge in question does not have any personal interest in the subject matter before the court. And even in such scenarios, the oath that each judge takes, the respective Code of Conduct, as well as various other mechanisms in place adequately restrict and regulate any such possibilities.

However, as a result of such allegations, the argument that is made is that, in order to be fair and impartial, a judge must be entirely and completely neutral in all mannerisms. Although the concept is as wonderful and ideal as it is impractical and unimplementable, the fact is that even the constitution requires its judges to specifically discharge their duties in subservience to the constitution and the law. In essence, by the very mandate of the constitution, judges are required to be partisan and partial towards the constitution and the democratic order as espoused therein.

If it is assumed nonetheless that judges should be entirely neutral, the only persons fit to be judges would be those who have no discernible opinion, are frugal with expressing their opinions, or superficially, have opinions but are smart enough not to express them.

Having no opinions is perhaps not humanly possible, and even if so, speaks of a person not willing to face opposition, or worse someone who is too scared to do so. Either one of the two possibilities is frightening, considering that a judge, by virtue of his/her decisions, will inevitably have to face opposition, resistance, and even ridicule, whilst dishing out justice. A judge's consistent efforts not to rock the boat or to simply fall in line would not bode well for his/her and the institution’s reputation as independent and impartial.

Recommending someone on the basis of a limited number of expressed opinions and popularity presents far greater issues than it seeks to resolve -- that is, there appears to be no discernible yardstick on the basis of which it can be determined as to what number or frequency of opinions would be kosher for purposes of a recommendation to a post in a high court. Additionally, and more importantly, even if a certain number is ascertainable, how would it be determined as to which opinions would be worthy of expression and which would not. In fact, to undertake such an exercise may very well fall afoul of the constitutional protections provided to free speech in the constitution itself.

Having yet not expressed any opinions has its own perils. The mere non-expression of an opinion would not cater to the objection of someone having a predetermined mind, as presumably someone who does not express his opinions may nonetheless have those opinions -- which could come to light once on the bench. Thus, it may be argued that an openness in terms of one’s inclinations and thought processes makes for a better and more transparent appointment process than one shrouded in secrecy and doubt (only to come out later).

As such, impartiality on the touchstone of a whitewashing and bleaching of opinion-making is not only impractical but effectively impossible. Hence, aspirants to a seat in any of the high courts of Pakistan should not be discouraged from appointment merely on the basis that they may harbor certain public opinions on matters that affect all.

Differences in opinion and in methodology do not evidence a source of bias or conflict but are rather a source of strength for a judicial setup which seeks to harness capable individuals of varying ideologies and thought processes connected by their partisanship and partiality towards the constitution of the country.

The writer is an attorney-at-law.

Email: basil.nabi@gmail.com

Twitter: @basilnabi