WORDS OF WISDOM AND LABOUR JUDICIARY

By:
MAHMOOD ABDUL GHANI
Advocate Supreme Court of Pakistan

A German proverb proclaims: "If the old dog barks he gives counsel." The older I grow the more I distrust the familiar doctrine that Judges do not learn. Presently in Labour Judiciary where cases are required to be decided in a summary manner, inevitably proceedings are delayed as the Judge grants one more adjournments in the larger interest of justice. It is convenient way to avoid proceeding with cases or going through the records to determine the facts and dictate the decision. Lord Justice Ackner in English Daily "Observer" of London on 25th October 1981 has aptly remarked: "Convenience and justice are often not on speaking terms." So also misplaced sympathy on the sole ground that workers are the weaker class and justice should also be not on speaking terms.

Lord Denning in his famous book: "Freedom under the Law", Page 912 has rightly provided the guidelines thus: "A judicial decision is based on reasons and is known to be so because it is supported by reason. An arbitrary decision ……..may be based on personal feeling, or even on whims, caprice or prejudice."

Every man is blind in his own case. He that Judges without informing himself to the utmost that he is capable, cannot acquaint himself of judging amiss. No just Judge must pronounce one type of judgment in one case and a different one in the case of others. No wonder, William Shakespeare in "The Merchant of Venice" has inquired: "What judgment shall I dread doing so wrong?" Judges are the depositories of the law, the living oracles, who must decide in all cases of doubt and who are bound by an oath to decide according to the law of the land. Francis Bacon, the British author, has rightly cautioned: "Judges must beware of hard constructions and strained inference, for there is no worse torture than the torture of the Laws." No doubt Judges are but men, yet, it is always the business of the Judges in a case to find out the truth. Lord Denning MR. in the case of Grosnovor Hotel, London reported in (1965) 1. Ch. 1210 at 1244 has observed: "It is the Judges who are the guardians of justice in this land". These wise words of wisdom apply in force to Labour Judiciary in particular in this country, for every unjust decision is a reproach to the law or to the Judge who administers it. Hard cases offer a strong temptation to let them have their proverbial consequences. It is a temptation that the judicial mind must be vigilant to resist. This was the wise advice given by Lord Diplex in the case titled Gibson v Manchester City Council (1979) 1 All. E.R. 972 at 976.

The Judge must weigh the arguments and put a brave face on the matter, and, since must give a decision, decide as best as he can, and hope he has done justice and given a decision to the community, in the present context both Labour and Employers. Labour cases are hard cases, specially when female or widows are involved. We all know where hard cases can take a Judge. However, this does not mean Labour Judiciary decide cases on benevolence or act as "benevolent despot" as observed by our Apex Court. Presiding Offices of Labour Courts and Member of Labour Appellate Tribunal or NIRC are both to obey as well as execute the law. Judges are and should be more apt than legislators to take a long view. A good Judge conceives quickly but Judge slowly. Thomas Jefferson the US President has remarked: "Judges should always be men of learning and experience in the Laws, of exemplary morals, great patience, calmness and attention, their minds should not be distracted with jarring interests, they should not be dependant upon any man or body of man." Today our District Judges are far well paid than their predecessors. Recently the Chief Justice of High Court of Sindh distributed keys of cars to more than forty Judges. No one has forced them to become a Judge. It is of their choice. However, once they adorn the rope they must act as Philologists of the highest order. A Judge is a student who marks his own examination papers. If some of these Counsels are adopted in the spirit it is being humbly tendered, there will be less burden on our superior judiciary.

Great Judges are in their different way judicial activists. Past Industrial Court Judges like Ghulam Hyder K.S. Pir, Aga Ali Hyder, Feroze Nana Ghulam Ally, Shahnawaz Khan, Ghulam Rasool in Sindh and few in Punjab gave decisions which were prominently reported in Labour Laws Journals and invariably upheld by the High Courts. Not so at present. This require soul and heart searching. Even in Labour Appellate Tribunals, Judges like Inamullah Khan, Z.A. Channa, Mushtaq Ali Kazi, Aga Ali Hyder, Munawar Ali Khan Mughal, laid down law and enunciated Labour Jurisprudence. Pity should find no place in dispensing justice. Justice C.J. Scroggs in R. v. Johnson (1678) 2. Show K.B 1 at 4 has remarked: "For as anger does not become a Judge, so neither do the pity, for one is the mark of a foolish women, as the other is of a passionate man." Recently a Lady Judge was appointed in Labour Court at Karachi who misbehaved with all and sundry. Her Court was boycotted for months. No Counsel appeared and ultimately she was recalled.

William Shakespeare in Henry IV has proclaimed: “I’ll be a brave Judge." In Henry VIII, the author has remarked: "Heaven is above all yet, there sits a Judge that no King can corrupt." How awful it is when the right Judge Judges wrongly. Judges and all executive officers dealing with Labour Judicial work should be made as much as possible, independent of the will of the people at large. All appointments of judicial offices be made on the basis of Al-Jehad Trust decision of the Apex Court in consultation with and approval of the Chief Justice of the High Courts in the Province. This is our destiny. It is the destiny of the People of this great country of which we all are proud to be its citizens. We should no more be treated as herds of cattles, cows or even donkeys.

Labour Judiciary should recognize that confidence on others honesty is no light testimony of ones own integrity. They must realize that time has come to eliminate slow motion justice. Law should not be relaxed when the Judges show pity. They should not see how people act, and then declare that is the law. Obedience to the law should be demanded as a right not asked as a favour. Eleanor Roosevelt, wife of President U.S and first lady of U.S has remarked: "No one can make you feel inferior without your consent". Both Labour and Employer as also their Counsel or Labour representative should realize that appearance before the Labour Judiciary is privilege burdened with conditions and responsibility. We all owe it to the judiciary to ensure expeditious disposal of cases, appear in Courts in time, well prepared address the Court befitting his stature and not attempt to browbeat the judiciary either on the ground that they are affiliated to any political party or occupy and office in the Bar or Association. At the same time Labour Judiciary should not tread on path where angles fear to thread by propounding theories and principles which cut at the root of our national economy. In Industrial Relations we can follow the way of peace or of conflict. In our conditions it cannot be both. The basic elements of sound industrial relations should be strong trade union, enlightened employer and minimum intervention of Government. Alexander Hamilton 18th Century American Statesmen has wisely remarked: "Those who stand for nothing fall for anything." Labour Judiciary deals essentially with what is known as "Bread and Butter" legislation. Presently we are being asked: "Can't get Roti. Try Danish delicacy!"

We should all examine the wisdom behind Aristotle, the 4th Century B.C. Greek Philosopher remarks: "At his best, Man is the noblest of all animals, separated form law and justice, he is the worst." Labour Judiciary should not proceed with preconceived notions as to who is basically right or who is wrong. Judges should dispose off cases keeping in view these basic view in mind. One effect of running cases fast through the Courts below is that they go by scores to appeal. However, as Lord Denning has aptly remarked: "There is no certainty in the law. The great aim should be justice".

In Pakistan there are presently more then Seventy Labour laws in force. In Labour Jurisprudence it too happens that there is so much Law that there is no room for justice. Labour Laws grind employers and workers, whereas those in power rule the roast. Lord Halifax in his book "Political thoughts and Reflections" has concluded: "Laws are generally not understood by the sorts of persons, viz by those that make them, by those that execute them and by those that suffer if they break them." Did the learned and wise Lord had in mind the state of Labour Laws and Labour Judiciary and those legislating Labour Laws in Pakistan in mind?

Lord Chief Justice Parker, a British Judge has provided the guideline thus: "A Judge is not supposed to know anything about the facts of life until they have been presented in evidence and explained to him at least three times. Justice is too good for some people and not good enough for the rest. Injustice is relatively easy to bear: what stings is justice. The love of justice is , in most men, nothing more than the fear of suffering injustice. Pope John Paul II has very correctly observed: "Only a socially just country has the right to exist".

A Judge or a Presiding Officer of Labour Court or.a member of Labour Appellate Tribunal or any functionary of Labour Judiciary should be such that it is proclaimed that Judge is nothing but the Law speaking It should be the duty of a Judge to Judge not according to what things are alleged but what things are proved. The best of Labour Laws in this country should leave the least discretion to the Judge, who should conceive quickly but Judges slowly. Aristotle, the ansent Greek Philosopher has declared: "The Judges hold office for life is not a good thing, for the mind grows old as well as the body."

Judges it is noticed should be silent and not make comments as will even indirectly reflect or give his mind. There is a Russian proverb: "A Judge and a stomach do their asking in silence." Expediency should find no place injustice. A good and faithful Judge prefers what is right to what is expedient. He should also keep in mind that when he tries a case he himself is on trial. In other words Judges like Ceasers Wife, should be above suspicion. My more than fifty two years experience as a Labour Law Lawyer has made me come to this conclusion, which 1 share with fellow countrymen. Judges are, in many respects, like parents. You have to give them a good enough reason to do what you want.

No doubt Judges are but men, yet Cicero (106-43 BC) has rightly said: "It is always the business of the Judge in a trial Court to find out the truth." Lord Edmond Davis in Gibson vs. Manchester City Council (1979) 1, All E.R 972 at 976 has rightly observed: "My Lords, this is a hard case, and we all know here hard case can take a Judge." These observations may aptly apply to our Labour Appellate Tribunals. A Judge should weight the argument and put a brave face on the matter, and since there must be a decision, decide as best as he can, and hope he has done justice, and given justice to the community. Virtue is the weakness of strong Generals, yet it should be the strength of weak Magistrates, much less as Judge of Superior Judiciary. Great Judges are in their different way judicial activists. If our Judges are sober, as Henry Fielding in "Don Quixote in England" remarked "we, the hapless employers, workers, labour lawyers and labour representatives will be satisfied."