Daily Times

As I asked a witness to take oath last week during evidence that I had been deputed to record, a fellow lawyer remarked that since it is mandatory on witnesses deposing before the court to take an oath, the judges presiding should also be required to take an oath, every time, stating that they have delivered the judgement honestly and diligently.

Preposterous as it may sound, I was partly amused as I knew exactly where the learned counsel was coming from. Those of us who litigate on a regular basis are sometimes confronted by exasperating and absurd orders and judgments passed by the courts. It is expensive and time-consuming for each such order or judgement to be taken to the superior courts to be set aside.

One of the downsides of practising law is that there is no getting rid of the books. It is probably worse than being at school where one desperately prays to grow up, which I regularly did and now regret. I got out of one school but instead opted to go to another for the rest of my life; it is called the school of ‘perpetual evolvement’ and is open round the clock. This morning when I was in my student mode, I decided to catch up on recent case law. For lawyers, case law is a reservoir of strength, a beacon of light and guiding principle on which we plead cases of clients to get justice.

The decisions of the Supreme Court (SC) are binding upon all courts in Pakistan by virtue of the Constitution ‘to the extent that it decides a question of law or is based upon or enunciates a principle of law’; similarly, the decisions of the High Courts (HCs) are also binding on all courts subordinate to them.

I started my session with the recent judgements on family laws as this particular field has vulnerable litigants, including children, who suffer greatly due to lack of financial resources. I came across a judgement handed down by the Lahore High Court (LHC), which literally left me gasping for air. This particular judgement has been reported in various law journals and pertained to a maintenance suit filed by a 17-year-old daughter against her father who was a wealthy man. The trial court decreed the suit in the daughter’s favour, awarding Rs 1,500 per month, allowing a 15 percent annual increase in the quantum of maintenance awarded.

For starters, Rs1,500 for a 17-year-old is preposterous; maintenance includes boarding, raiment, education, utilities, food, medical care, transport and all that is necessary to sustain life. The court set-aside the 15 percent annual increase, which was awarded by the trial court stating, “The annual increase in the payment of maintenance allowance has not been provided in any provisions of the West Pakistan Family Court Act, 1964. It is the legislature to take into consideration the growing prices of the articles whereafter the same could legislate the law for imposing annual increase in the payment of maintenance allowance, till then, the courts have no jurisdiction to impose or levy any increase upon the payment of maintenance allowance. The increase levied by the courts below upon the payment of maintenance allowance lacks statutory sanction as such, to this extent, the judgments of the courts below are liable to be set aside.”

Then, I found another one on the same issue by the same court.

Mortified is the word I would choose to describe my feelings. We already struggle before the family judges to implement even basic principles. To award a reasonable amount of maintenance is still a rare feature, and now to have two judgments by the LHC that state that unless and until there is an express law, no annual increase can be granted to plaintiffs in maintenance cases is akin to a serious miscarriage of justice. Unless there is an express law barring an act, it is deemed to be permissible; long before the statutory provision for interim maintenance, the courts were already granting it. The same holds true for past and future maintenance for which there is still no express law. Justice cannot be done in a vacuum; children grow, need change, prices of commodities rise. The apex court observed in 1989: “The law sometimes is called an ass but the Judges should, as far as it is possible, try not to become one.” Again in 1990, it reiterated, “Law may be blind but the Judge is not.” In defence of family judges, they mostly do decree maintenance cases of children with annual increase in line with the precedents handed down by the SC. The SC and the HCs of all provinces have consistently upheld orders of annual increase by family judges because that is the only just thing to do.

Another principle set by the SC is “the earlier judgment of equal Bench in the High Court of the same point is binding upon the second Bench and if a contrary view had to be taken, then request for constitution of a larger Bench should have been made”. As stated earlier, awarding of annual increase in maintenance is the norm, which has consistently been upheld by the superior judiciary; to say otherwise would be tantamount to violation of a binding constitutional provision.

Speaking at the International Judicial Conference held this month at Islamabad, the Chief Justice of Pakistan while commenting on the lawyers’ movement for the independence of the judiciary said, “This success has brought the system of administration of justice under an increased pressure to deliver to the litigant public and the masses. This added burden is to be shouldered primarily by the Bench and the Bar, which are the two proverbial wheels of the chariot of justice. Undoubtedly, the judiciary can administer justice with the cooperation and support of the members of the bar. The Bench and the Bar have to endeavour individually and collectively to achieve the common objective of expeditious and inexpensive dispensation of justice.”

Oaths are a legal requirement. Witnesses take oath before deposing, judges take oath upon entering office. What about moral obligations? What about the need to do what is right? Where is our sense of righteousness? Of upholding what is just? Why should we be only bound to state the truth and to dispense justice by uttering a few words? Why cannot we do what is right and just as a norm rather than an exception?

As a member of the Bar and part of one wheel of the chariot of justice, I need to know that the chariot is being driven in accordance with the constitution. I need to know that when a special law is enacted to alleviate the sufferings of a vulnerable population, it is implemented to advance the ends of justice, and that the wheels of the chariot are not jammed by lack of care and maintenance. Justice is a divine attribute and mortals cannot aspire to ever be able to dispense it completely, but dispensing it is a sacred duty cast on everyone, but more so on judges and the black coats who plead the cause of others. Should we be held accountable for causing a miscarriage of justice?

The writer is an advocate of the high court