A Judge writes his own epitaph

M. Harunur Rashid :
Former Chief Justice Mr Justice Mostafa Kamal was interviewed by a television channel called Baishakhi TV, which was aired on 4th of November, 2013 where he was asked amongst others a specific question whether he received any national or international award for the contributions he has made in the field of law and legal history. In replying this question he said a judge should not expect any award during his life time and he should always try to write quality judgment in the cases decided by him and at the end of the day there should not be any scope for criticising him that he wrote this particular judgment for any award or appreciation of particular section of people. That will seriously impact his impartiality and integrity too. A judge should be always evaluated and regarded by the quality judgments he has delivered. A value judgment enriches the legal literature and in this way a judge writes his own epitaph.
We all know that there was a time when judges were regarded as viceroy of God. The judges are expected to keep their eyes open to cope with the changing needs of the society while deciding cases and they have to always uphold the scale of justice where morality and sense of values have to be looked at. The judges indeed do a very hard and thankless job in the society like ours, where people in general try to make everybody happy and the people who seldom speak undesirable truth are mostly disliked by many people. In this connection an observation made by Lord Denning is very pertinent.
I quote ‘Law does not stand still. It moves continually, once this is recognised, then the task of the judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time. He must not be a mere mechanic, a mere working mason, laying brick on brick without thought to the overall design. He must be an architect-thinking of the structure as a whole-building for society a system of law which is strong, durable and just. It is on his work that civilised society itself depends’ unquote, (quoted from the judgment of K. Iyer J reported in AIR 1977 SC at page 2328).
It is to be remembered with due respect that the judges of UK, USA and Indian Sub-Continent as well have established the law as regulated way of life and adherents of which must seek legitimate relief in the judicial process and they have done it by making their efforts impartially, fearlessly and relentlessly. There was a time when judges were the role model in the society at large and the judges were used to hold most honoured and prestigious position in the society. The sacrifices made by the judges in the past made it possible when they did not compromise with the principle of social justice and equality. Some of us know and remember the story of Sir Edward Cooke as he was beheaded as Chief Justice of England when he could not comply with a request made by the King of England James II in issuing a writ against the Crown.
But the judges these days have lost their glory and have also lost their confidence in the justice delivery system of this country. The biggest challenge we have ahead judiciary in this part of the world is how to regain peoples confidence in the justice system and to bring about changes in the existing delayprone antiquated legal system.
There are number of reasons for the wretchedness of judicial system and 1 would like to highlight one or two aspect, which 1 have come across working as a judge in the Sub-Ordinate Judiciary for the last 25 years.
In this country the legal community do not generally nurture and appreciate value judgment and we do not believe in reward and punishment theory. We do not also encourage and support out- spoken people and we always like to be surrounded by bunches of liars and sycophants. People here praises the lion but likes the donkey. All we want is easy glory and quick money. There are hardly any instance where a judge was appreciated or rewarded either in terms of promotion and posting for writing quality judgment, honesty and integrity.
As a judge we should not behave in a manner that we have our master. A judge cannot have master on top of his head. We should always bear in mind that judicial service is not a service in the sense of employment and we do not have an employer in the truest sense. As judge we exercise sovereign power of the State as decided in the celebrated judgment delivered in Masdar Hossain case. A judge having subservient mentality who keeps himself busy in apple polishing to please his boss cannot represent Almighty Allah in dispensation of justice in the earth.
If honesty and knowledge of law are not encouraged in worldly affairs, the people will not feel like to be honest and law knowing in performance of their judicial functions.
It will be my sheer effrontery, if I say that there is a lack of congenial atmosphere where judges can work without fear or favour. I however, as an incorrigible optimist would look forward to see that the judges are working with the fullest independence as envisaged in the Constitution of Bangladesh.
The pith and substance of our Constitution is to strike a balance in terms of governance by ensuring harmonious functioning of different organs of the State by checks and balances. In this way the Legislature would transact legislative business in accordance with the scheme and spirit of the Constitution and the Executive will come forward to execute and implement the law and the Judiciary above all would examine the validity and legality of law when it is brought before it. In this context an observation made by Professor W. Friedmann is worth mentioning.
I quote ‘In modern democratic society the judge must steer his way between the Scylla of subservience to Government and the chervils of remoteness from constantly changing social pressures and economic need unquote, (quoted from the book titled Law in a Changing Society).
Despite all these mounting pressure and allurement, if the judges can do the job independently, honestly and impartially, they will be no doubt writing their own epitaph.