01 August 2013

On the Difficulties Faced by Judges

Another one from the old TFT Miscellany-at-Law days. 

Readers will no doubt agree that judges have difficult jobs.  When they are not busy dealing with phone calls from frantic Law Ministers, they are elbow deep in listening to arguments or writing judgments.  It will also be self evident that each case, however different from another, must present before the judge the same dilemma: Whether to exercise their judicial discretion and grant justice, or to remain in harmony with the precedents set out in previously decided cases.  Both choices are fraught with difficulty.

Justice Nasim Hasan Shah, always mindful of the problems faced by the Bench, once invoked the aid of literature to persuade them of the need to look beyond the narrow scope of precedent to do justice.  Quoting from Shakespeare’s ‘The Merchant of Venice” our former Chief Justice relied on the earnest plea of Bassanio (Act IV, Scene I):

“And I beseech you,
Wrest once the law to your authority:
To do a great right, do a little wrong.” 

But, however eloquent such a plea may sound, it is not without rebut.  In the case of Syndall v. Castings Ltd. ([1967] I QB 302), it fell to be decided whether or not a man’s illegitimate son was his “descendant” for the purposes of a certain group insurance scheme.  Despite the decisions reached on this point in previous cases, the great Lord Denning M.R held that the child was entitled to the benefits of the scheme.  However, his reasoning did not persuade the other two judges – Lord Diplock and Lord Russell – sitting on the Bench at the Court of Appeal.  Lord Russell ended his judgement with the words: “I may perhaps be forgiven for saying that it appears to me that Lord Denning M.R. has acceded to the appeal of Bassanio in the Merchant of Venice.”  He then quoted the lines above.  “But,” as there is more in Act IV, Scene I than Bassanio’s lone plea, he added: “Portia retorted:

‘It must not be; there is no power in Venice
Can alter a decree established:
‘Twill be recorded for a precedent,
And many an error, by the same example,
Will rush into the State: It cannot be.’

I am a Portia man.”  It seems Justice Shah either sided purely with Bassanio’s camp, or had not read the scene completely.

Poetry, too, has been invoked to unchain the Bench from the shackles of blind adherence to stare decisis (previous decisions).  For example, in Van Kleek v. Ramer (156 Pac. 1108), Scott J. stated: “I may be permitted to suggest, for the consideration of courts and judges who feel impelled to sacrifice their sense of reason and justice upon the Golden Calf of precedent, the quaint philosophy of Sam Walter Foss, in the following lines:

‘One day through the primeval wood
A calf walked home, as good calves should;
But left a trail all bent askew,
A crooked trail, as all calves do.

Since then three hundred years have fled,
And, I infer, the calf is dead.
But still he left behind this trail,
And thereby hangs my moral tale.

The trail was taken up next day
By a lone dog that passed that way;
And then a wise bell weather sheep
Persued the trail o’er vale and steep,

And drew the flock behind him, too,
As good bell-weathers always do,
So from that day, o’er hill and glade,
Through those woods a path was made,

And many men wound in and out,
And bent and turned and dodges about,
And uttered words of righteous wrath,
Because ’twas such a crooked path;

But still they followed – do not laugh –
The first migrations of that calf,
And through this winding woodway stalked
Because he wabbled when he walked.

The forest path became a lane,
That bent and turned and turned again;
This crooked lane became a road,
Where many a poor horse, with his load,

Toiled on, beneath the burning sun,
And traveled some three miles in one.
And thus a century and a half
They trod the footsteps of that calf.

The years passed on with swiftness fleet,
The road became a village street,
And this, before men were aware,
A city’s crowded thoroughfare.

And soon the central street was this
Of a crowded metropolis,
And men two centuries and a half
Trod the footsteps of that calf.

Each day a hundred thousand rout
Followed the zigzag calf about;
And o’er his crooked journey went
The traffic of a continent.

A hundred thousand men were
By one calf near three centuries dead,
They followed still his crooked way,
And lost one hundred years a day;

For thus such reverence is lent
To well-established precedent.
A moral lesson this might teach,
Were I ordained and called to preach.

For men are prone to go it blind
Along the calf paths of the mind,
And toil away from sun to sun
To do what other men have done.

They follow in the beaten track,
And out and in, and forth and back,
And still their devious course pursue
To keep the paths that others do.

But how the wise old wood-gods laugh,
Who saw the first primeval calf!
Ah! Many things this tale might teach;
But I am not ordained to preach.’”

But this calf lyrical should not cloud our judgment.  Discretion, the opposite of following precedent, is sometimes a poor substitute for principle, however great the judge.  “The Discretion of a judge is the Law of Tyrants; it is always unknown; it is different in different Men; it is casual and depends Constitution, Temper, and Passion.  In the best it is often times Caprice, in the worst it is every Vice, Folly, and Passion to which human Nature is liable.”(as cited by Perrin J. in Conway and Lynch v. R. (1845) 7 Ir.L.R 149).  Such a warning is to be taken seriously.

Where, then, are our judges left?  Between the rock of precedent and the hard place of discretion?  The difficult quest for justice may be summed up by the words attributed to Bowen L.J., when, in determining a case, he remarked:  “When I hear of ‘equity’ in a case like this, I am reminded of a blind man – in a dark room – looking for a black hat – which isn’t there!”  Perhaps a solution is to be found in the ingenuity of the Bench itself; in a dose of common sense.

In 1893 it fell to be decided whether a launch in an artificial lake half a mile long was a “ship” within the English Merchant Shipping Act, 1854.  Lord Coleridge C.J. addressed the point with great clarity: “The Attorney-General has asked where we are to draw the line.  The answer is that is not necessary to draw the line at any precise point.  It is enough for us to say that the present case is on the right side of any reasonable line that could be drawn” (Mayor &c. of Southport v. Morriss [1893] I QB 359).  How true!

On Bias

This article was written over a decade ago, during the Benazir Bhutto’s appeal against her conviction by an Accountability Court.  Then, the Court convicting her was accused of bias.  I wrote this article - part of a series of columns for TFT on the miscellany of law - reflecting on some aspects of bias.

Recently, the Supreme Court has been criticised for being biased again.

The Mohtarma Benazir Bhutto is launching another attempt to enter Pakistan triumphantly, bringing allegations of bias against the judiciary with her.  Her lawyers who, at this moment, are prevaricating and delaying in our august Supreme Court, seek to introduce into evidence, amongst other things, alleged phone conversations recorded by (what our press likes to call) the ‘sensitive’ agencies.

Sensitive or not, these intelligence agencies seem to have tapped the phones of the judges hearing Ms. Bhutto’s case in 1999.  More interesting is the alleged phone conversation between the then Law Minister, Khalid Anwar, and the High Court Judge Malik Mohammad Qayoom.  Less interesting is Khalid Anwar’s tepid defense of his actions (published in the daily DAWN).

One of the rules of ‘Natural Justice’ is that everyone is entitled to be heard by a judge who is not biased or prejudiced in a way that precludes a fair and genuine trial.  This rule of Natural Justice was first set out by Lord Hewart CJ in what is now a familiar phrase: “Justice should not only be done, but should manifestly and undoubtedly be seen to be done” (R v. Sussex JJ., ex parte McCarthy [1924] 1 KB 256).  Of course, judges are only human, and it impossible to expect from them “the icy impartiality of a Rhadamanthus”, the cruel judge of Hell, who punished before he heard (cited by Bowen LJ in Jackson v. Barry Ry. [1893] 1 Ch 238).  Evidently, even Satan is unfamiliar with that other rule of Natural Justice, the audi alterem partem principle that no one should be condemned unheard.  But I digress.  Judges are not supermen, an astute observation made by our Supreme Court (for more on that particular farce, read Justice Akhlaq Hussain’s case PLD 1969 SC 201).  They are men, and hence liable to their individual temper, constitution and passion; which is why if and when these three emotions are exercised, a litigant is entitled to a new, unbiased trail.

The tests for bias are settled principles of law, but their development has thrown up the odd case or two of some interest. 

Take, for example, R. (Donoghue) v. Cork County JJ. ([1910] 2 IR 271) where the conviction by an Irish magistrate – and it is important to remember the Magistrate was Irish – of a certain defendant was quashed when it was shown that “a very bad feeling” existed between him and the defendant’s family.  DeSmith’s does not elaborate on the case, and reveals only that the animosity was the result of “a trespass by a fowl.”  Ghar ki murghi = conviction, I suppose.

The natural right of every litigant to have a fair trial is so fundamental to the practice of the law that even the most absurd allegations of bias have been adjudicated upon.  In R v. Dublin JJ. ([1904] 2 IR 75), the owners of a public house whose liquor license had not been granted by the licensing judge (in England, establishments that serve liquor must have permission to do so) brought a case of bias against him on the grounds that he was a teetotaler.  Their argument was that the licensing judge’s state of mind was “likely to prevent him from dealing fairly with applications before him”.  The challenge, however, was unsuccessful.

Of course, the act of trying to bias a judge is a different story altogether.  An Indian case, reported as 45 Cr LJ 244 (RC) is quite succinct on the issue: Here, interference by a minister in a trial case was proved.   It was decided that the case was to be retried because of this alleged interference, even though it had not been proved whether or not it had been a cause of the verdict.  Of course, all this case puts Mr. Khalid Anwar’s rather tepid defense of his action in serious doubt, regardless of what Ardeshir Cowasjee or Amina Jilani may say.  

For the prosecution, on the other hand, the issues raised by these tapes are different.  To them it seems that the introduction of the tapes into evidence is only a means to divert attention from the fact that Ms. Bhutto and her husband are guilty of corruption.  Their argument before the Supreme Court will attempt to bar the admission of the tapes into evidence on the grounds that the phone tappings were obtained unlawfully. In the United States, for example, the Supreme Court has held that under the Constitution a conviction obtained on evidence disclosed an unlawful search (which include phone tappings) cannot stand. The zeal of the prosecution team can be understood.  For them, the threat is that Ms. Bhutto and her husband will be acquitted on a technicality.  The American Supreme Court judge Benjamin Cardozo once expressed a similar view on the American law in People v. Defore (242 NY 13), describing it as one by which “the criminal is to go free because the constable has blundered.”  But one wonders if the prosecution’s zeal has not clouded their better judgment: A convict is still entitled to a fair trial.  Denying Benaizir this right can set an awful precedent.  The rule of law cannot be denied, for even the devil is entitled to a fair trial.

Robert Bolt’s play, “A Man for All Seasons”, sets out an eloquent defense of the rule of law. Henry VIII’s former Chancellor, Sir Thomas More, refused to take an oath “renouncing all obedience to the Bishop of Rome” and acknowledging the King as head of the Church of England.  Of course, he was tried for treason (the analogies with Pakistan are so glaringly obvious that one need not dwell on them).

Richard Rich, once a friend of More’s, gave fatal evidence against him.  In the play, Rich’s treachery is forecast in a powerful exchange between More, his daughter, Margret, and her husband-to-be:

MARGRET (speaking of Rich): Father, that man’s bad.
MORE:  There is no law against that.
ROPER:  There is! Gods law!
MORE:  Then God can arrest him.
ROPER:  Sophistication upon sophistication.
MORE:  No, sheer simplicity.  The law, Roper, the law.  I know what’s legal not what’s right.  And I’ll stick to what’s legal.
ROPER:  Then you set Man’s law above God’s!
MORE:  No, far below; but let me draw your attention to a fact – I’m not God.  The currents and eddies of right and wrong, which you find such plain sailing, I can’t navigate, I’m no voyager.  But in the thickets of the law, oh there I’m a forester.  I doubt if there’s a man alive who could follow me there, thank God . . . (He says this to himself.)
ALICE  (exasperated, and as is pointing to Rich): While you talk, he’s gone!
MORE:  And go he should if he was the Devil himself until he broke the law!
ROPER:  So now you’d give the Devil benefit of law!
MORE:  Yes.  What would you do?  Cut a great road through the law to get after the Devil?
ROPER:  I’d cut down every law in England to do that!
MORE  (roused and excited): Oh? (Advances on Roper.)  And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat?  (Leaves him.)  This country’s planted thick with laws from coast to coast – Man’s law, not God’s – and if you cut them down – and you’re just the man to do it – d’you really think you could stand upright in the winds that would blow then?  (Quietly.)  Yes, I’d give the Devil benefit of law, for my own safety’s sake.

It’s a pity, then, that More’ faith in the law did not work out.  He was condemned to a traitor’s death, but ‘mercifully’ this was commuted to just execution.  Of course, Benazir’s case is not one of life imitating art, and so Thomas More (and his gory fate) cannot be used as arguments.  Our Supreme Court should give Ms. Bhutto the fair trail she deserves, and ensure that the rule of law is protected and preserved.