Daily Times

It is the hallmark of our society to make uninformed and half-true statements and picture professionals as if they sit in ivory towers doing nothing. This projection has made the work of judiciary either misrepresented or misunderstood. Under such circumstances it is no surprise that asking about the duties of judges generates a lot of responses. Today if you asked a lay person what the duties of judges are, you should expect to hear to settle disputes between aggrieved parties or to do justice. Now if you asked a law student the same then be prepared to hear to that they maintain impartiality and fairness in deciding cases. Again if you asked this from a practicing lawyer you are most likely to hear that they settle disputes through the application of law. After all, if you persisted and asked a legal realist what judges ought to do, you are likely to hear that they predict the outcome of cases for future litigants. As a preliminary there is merit of simplicity in these responses. In fact there is no denying that real judges do try to resolve our daily conflicts through application of law in an impartial and unfair manner to maintain justice in society. But this projection does not assist a person who sees the lower courts give one decision and higher courts give another on the same matter. For such an observant but legally confused person the judges have in fact failed in doing justice because the party that the lower courts supposedly declared as innocent is sometimes made guilty by the higher courts or vice versa.

To address the concern of this person one can take an example from English case law, McLaughlin v O’Brian (1973). This case concerned a claim by Mrs McLaughlin for compensation for the psychiatric injury that she had sustained after hearing from a neighbour about the death of her daughter and serious injuries to her husband and remaining children in a car accident. At the trial level, it was held that she was not liable to compensation because the existing authorities on the matter did not redeem unforeseeable injuries, which are those injuries that happened away from the scene of accident. On the contrary, the Court of Appeal held that her injury as the mother of the victims was foreseeable but she was not liable to compensation on policy grounds. Whereas the House of Lords held that a foreseeable injury could not be denied on policy grounds, therefore her claim was upheld.

This case shows the theoretical disagreement of judges, that is to say their variations on what the law on psychiatric injury was and whether it could be denied in the face of policy decisions or not. For the observer the varying decisions of trial and apex courts seem like injustice because of judicial inconsistency.

It is precisely this weak judicial discretion that Professor Ronald Dworkin draws our attention to in his seminal book, Law’s Empire (1986). According to him there is an adjudicative principle that binds judges from settling cases partially and unfairly. This entails that there are three stages involved in constructive interpretation and it is the constitutional duty of the courts to go in these steps to discharge the allegations of caprice, unfettered discretion and judicial activism.

He opines that the first duty of judges is to be aware of the horizontal and vertical precedents. That is they should be aware of the possible laws applicable to the issue at hand. They should know what the earlier rulings on the same had said. At the same time they should be aware of the rulings of the higher courts if they were a lower court. This wealth of case knowledge will help them identify the law that befits the situation and minimise their prejudice. Dworkin calls this the pre-interpretive stage. Then they should see if the rule fits the situation they are exposed to. This he names as the interpretive stage. Lastly they should see if there is a need to change or reform the applicable rule to modernise it to the exigencies of modern times. This is the post-interpretive stage.

In fact there is no denying that real judges do try to resolve our daily conflicts through application of law in an impartial and unfair manner to maintain justice in society

It is in this sense that the incongruence in the McLaughlin case at trial and higher courts was noted. In the trial court the judge had found out after having looked at the authorities on the point that the victims who had been awarded damages were mostly present at the scene of accident and since Mrs McLaughlin was not present at the scene it could not be said that she was a foreseeable victim. Therefore denying her compensation was within the novel chain of previous authorities. However, at the Court of Appeal level it was found that because of the special relationship between the victims and the claimant it was foreseeable that any mother who is given news of death and injuries of her family would suffer emotional trauma. However, it decided not to give compensation on the basis of economic policy. At the House of Lords level it was found that compensation should not be denied on the basis of economic policy because where a right had been established the remedy should not be denied on policy grounds. For Dworkin this should have been so because rights trumped policy.

Taking a look at another judgement will further bring the point home. This is a judgement of New York Court of Appeals. In this case the Court was struck with the question whether a murderer could take the benefit of a will. In deciding this point the Court began with the statute on the point and found it did not address the issue at hand. This gave the judges the room to decide the issue through non-legal standards such as the principle not to let a person take the benefit of their wrong. The Court suggested where judiciary fails to identify the law on an issue in such situations it does not become free to decide cases as per its whim rather it goes on to see the moral consciousness and expectations of the society. Thus in the present case the Court decided against the murderer-beneficiary-grandson because for one reason the statute on it did not address the point and secondly the judges felt bound to protect the expectation of the society.

Let us now look at a Pakistani case to see if the three Dworkinian stages are complied with by our judiciary. To this end we have a judgement of the Supreme Court of Pakistan, in the case of Punjab Road Transport Corporation (PRTC) v Zahida Afzal 2006. The case concerned a claim against PRTC for negligent driving of their employee which had resulted in the death of Ms Zahida’s husband and minor children on the spot. Both the trial and High Courts had found against PRTC and ordered them to pay Rs11, 20,000 to the victim. The question before the Supreme Court was whether the award of damages by the lower courts had been made in correct application of the concerned law. In finding in favour of Ms Zahida the Court found the lower courts had made no error of law. Firstly, the onus to prove lack of negligence was on PRTC which they had failed to do. Secondly, in determining the quantum of compensation the lower courts were correct to conclude that damages were to be determined on the basis of average life expectancy of the deceased in the community as a whole and how much he/she would have probably given to the victim had they continued to live. Thus, in assessing the merits of the lower court’s decisions the Court first of all clarified the applicable law as found in Pakistan Steel Mills Corporation v Nazar Hussain 1990 and then checked if it had been correctly applied to the current situation as set out in Sri Manmatha Nath Kuri v Moulvi Muhammad Mokhlesur Rehman 1969 and concluded there was no need to reform.

From the discussion of these three cases it is clear that there is a misconception in our society that judges are free to reason as they wish. In fact much of their unfettered discretion is controlled by the three stages of interpretation which are latent in the decisions but absent from the know how of the laypersons. Therefore, it is important to educate people against jumping to conclusions about the judiciary and other professions and make it compulsory for them to tender an official apology for their un-grounded and uninformed statements.

The writer is a law graduate of the University of London and teaches Jurisprudence & Legal Theory