A REVIEW OF THE BOOK
“DEVELOPING THE JUDICIAL EDUCATION DISCOURSE WRITTEN BY GEETA OBEROI”
By
JUSTICE
® DR. MUNIR AHMAD MUGHAL[1]
(http://ssrn.com/author=1697634)
A 310 pages
book inclusive of Text ( pp. 1-274) annexure (pp. 275-306), and a subject index
(pp. 307-310) besides 33 pages of Dedication, Foreword, Acknowledgement, List
of Abbreviations and Contents. This is the first edition (2012) and its price
in
Upendra Baxi,
Emeritus professor, University of Warwick and Delhi has written the foreword in
seven pages which appear to be the seven seas of knowledge on the subject
having answer of every possible question that arises in the mind of the reader.[3]
·
“Cultures of
judicial education forfeit much of their potential when these promote vertical
rather than horizontal learning experience.”
·
Indeed, more than
any cadre of justices, our upper echelon justices ought to be exposed to
innovative exposures of judicial education, if only because in their long
afterlife (upon super-annuation) they continue to serve the Nation variously__
as
·
Chairpersons of human
rights institutions, law commissions, Lokpal, regulatory agencies, tribunals
also inclusive of the Green bench commissions of enquiry and much else besides.
·
Truth to say,
their eminent prior adjudicatory experience does not necessarily equip them either
with energy or vision to fully address their new tasks and mandates. If so, how
further may attempts at judicial education reach out to these adjudicatory
beings in their afterlives?
·
If the present
judicial education initiatives and institutions are destined at all fully to
serve the much wounded, hurt, harmed,
The book is a
doctoral thesis of Geeta Oberoi — a judicial educator in India with vast
experience in homeland and abroad — seems to be a best presentation of the
subject for which she and the University of Delhi and Department of Law and the
Deans: Prof. Nomita Agarwal, Prof. S.N. Singh and Prof. Gurdip Singh and also
the Judicial Studies Board of England and Wales now Judicial College and the
School of Law, University of Warwick all deserve congratulations. Thomson
Reuters (A division of Thomson Reuters South Asia Private Limited) is the
publisher of the book and deserves special mention to bring out the work on an
important topic of judicial education. It has been beautifully printed and
bound by the Rakmo Press Pvt. Ltd.,
I am hereby
mentioning several names of different personalities who added to the context
and content of the thesis in one way or the other which reflects their generous
cooperation with a student on the one side, and shows how a student not feeling
shy approaches those with knowledge is blessed with better knowledge. They have
been mentioned by the author herself by devoting a paragraph for each which is
summarised below with their affiliation:
The thesis of
the author was supervised by the Hon’ble Mr. Justice Arjan Sikri (presently
Judge, Supreme Court of India; the then Senior Judge of Delhi High Court) and
co-supervised by Ann Stewart (Senior Professor,
The book under
review is divided by the learned author in eight chapters to maintain fair
balance. It is an addition in the legal and judicial education literature. It
is an evidence of the fact that sons and daughters in the east are not lacking
potential in understanding and developing knowledge of all kinds provided fair
and proper opportunities are made available to them by those who are answerable
to their own conscience, the people at large and the Creator of all the worlds.
An eagle can show its excellent performance when it is free and there is vast
environment. Difficulties and hardships that are natural are to be boldly
confronted and labour of no person goes waste in the Universal Policy of the
Creator of all the Worlds. The author has named and thanked for the help and
assistance provided to her in homeland or abroad, including judges of the
Hon’ble Supreme Court, High Courts, District Courts and so on. This also is an
evidence that there are always present noble souls who encourage pursuits of
knowledge with an open and sincere heart.
The first
chapter is on the Role of the Judicial Education Discourse. The author has
initiated with boldness, coupled with criticism but at the same time pointing
out the problem and suggesting the recipe for solving it moderately with full
sense of the inner and the outer environment. The stress is on human factor
rather than on buildings etc. before coming to conclusion the learned author
has given ten points to justify the financial implications as under:
1. To
understand role of a judge in democratic governance framework.
2. To
clarify the difference between law and justice.
3. To shred
colonial hangover to meet challenges of changed circumstances.
4. To equip
courts for developments unleashed in other disciplines.
5. To solve
the problem of delay and arrears.
6. To
provide justice to poor in urban, rural and inaccessible areas.
7. To
remove subjectivity and prejudices.
8. To
remove the judicial gender bias. Here the learned author suggested three
courses, namely,--
·
Selection of
women for the judging work.
·
Decision making
on issues related to women.
·
professional
harassment of women in the courts.
9. To provide profession al skills for
judging.
10. To upgrade the Legal Education.
The Discourse
contains 208 references to support every argument spread over 62 pages. The
study has been comparative and the way of explaining the problem has been
historical, analytical and moral leaving no loophole for any future stagnation.
I quote from her conclusions a few words to show how competently the author has
endeavoured to surmount the hill task. She writes:
“The above discussion establishes without any doubt
that the need for imparting training to the members of the judiciary at every
level with a view to improve their performance, competence and efficiency. In
this Chapter, I have attempted to provide an exhaustive list of reasons that justify
the increased investment in the JE discourse by the State. The state must
therefore make an adequate arrangement to support continuing education not just
for the judges but for all personnel in the court system, including
administrators, human resource people, computer specialist, secretaries, court
reportersand security personnel. it needs to provide budgets not only to
provide continuing education in many diverse subjects,and to all personnel
engaged in the functioning of the court system, but also to support the R&
D activities. most of the institutions providing the JE discourse in the west
are found investing heavily in their R&D activities. These research
activities help judges to reflect upon their judging methodology. For instance
in the USA, in the year 1994, the FJC conducted research that showed that
despite having long standing authority to appoint experts, 80 percent of
Federal Distric Courts had never used one.[4] Further the 1999
Such studies provide feed back to the judicial system
and help it to strengthen its legitimacy. In 2004 in
Finally as compared to the European nations, where
trial court judges have to undergo an extensive educational preparation and
possibly an internship with a judge to get judgeship[6] the trial court judges in the common law countries
like India face only minimal prerequisites for assuming judgeship. Therefore
the importance of training cannot be over emphasised in such jurisdictions.
[pp.61-62].
Chapter 2 posing
a question: Why aiming for professionalization through the Judicial Education
Discourse?
The learned
author dealing with many questions ably and satisfactorily comes to the
conclusion that for most recognized professions a orderly career begins with
specialized education in professional schools and colleges and forth e
judiciary, the legal education is the stepping stone for the judicial career.
Almost upto the
19th century, legal education employed apprenticeship method of receiving
instruction and tutelage in the office of a local practitioner. It was until
the 19th century that separate departments of law were established in the
existing universities in the US and some improvement was brought about by
introducing of case analysis teaching method and then by arrival of reformers
like Holmes, pound and Frank in the legal scene.[7] However, even today, legal education trains mind to
thinking positivistic tradition which create problems for law being non-linear
and recursive, unpredictable and subject of the whims of competing
rationalities__ has to be treated as one of the complex adaptive systems__
which cannot be defined in abstract terms in such complex systems,
(i) order is
an emergent property of the interactions within a system rather than
predetermined by design;
(ii) history
of system is important and irreversible determinant of its structure and cannot
be recreated because it is constantly being reconstituted by self organising
processes of the system;
(iii) future
development of the system is unpredictable;
(iv) language
and communication plays the most important role as through this language a
system comes to possess its own rationality, separate from the rationality of
those subjects who interact with it.[8]
(v) A person
by undertaking traditional legal education discourse and practicing some years
as a legal professional, just by assuming judgeship does not overnight get
transformed in to a judicial professional. Adherence to important attributes of
a profession is far from satisfactory level.
(vi) Trainings
have high potential as evident from established professions in raising
adherence to the aims and objectives of a profession. Certainly, therefore
members of the judiciary can also be helped to professionalize by the
trainings. The JE discourse can design advanced courses for judges, clarifying
the complex role of the law in society, the inter-subjective and constructed
nature of the norms[9] so that judges understand nuances of the judging
process.
(vii) The JE
Discourse can help in judicial professionalization by making every judge
knowledgeable and competent to devise solutions for different kinds of problems
that may be brought before the courts by raising judicial appreciation for
accountability to the community it serves and by involving the judiciary in all
the steps for its own professional development.[10] [pp. 91-92].
In Chapter 3 the
learned author has explored how the judicial professionalization forms either
as an explicit or as an implicit agenda of the judicial education discourse in
various jurisdictions, the kind of reforms that are carried out in different
jurisdictions to strengthen the judicial professionalization, and how different
jurisdictions around the globe are converging and borrowing from each other on
objectives, methodology and other areas around the training discourse to
produce a distinct and independent class of judge professionals. [p. 93].
In Chapter 4 the
learned author has dealt with four things and for each devoted a part. Thus
Part one with its focus on the delivery of the discourse to judge audience
deals with questions like:
·
Why methods of
delivery of training matter?
·
What methods are
available to us?
·
How they differ
from one another?
·
Which of them are
successful for adult professional development courses?
·
What utility will
they be of, if imported for the JE discourse?
The author is
certain that this part will be of utility to the judicial scholars and
acquaints them with theoretical framework around training and learning
constructed by other disciplines. It helps in unravelling the mysteries of
human transformation through educational intervention.
Part two makes
an inquiry to discover:
·
Who can be a
trainer for JE discourse?
·
What beyond a
lowest common denominator of education and training makes a good trainer?
·
What is the
extent of recognition and who controls selection of trainers for the JE
discourse?
·
Are these
trainers having participatory role in the curriculum development or are they
merely applying curriculum decided by the closed circle of members of the
judiciary? What are various understandings of training as a profession?
·
Is training
itself a full time profession?
·
Do trainers view
themselves as professionals? Or extension of academia? Or is it a separate
profession altogether?
·
Is there any
development regarding professionalization of trainers?
This part
suggests ways for the future trainers to-
(i) tap the
rich load of experience that judges bring to th e table when they come to
attend the training programs,
(ii) make
judge masters of their own learning so that they are able to approach and deal
with the tasks independently.[p. 184]
Part three
attempts to formulate, a basic educational criterion for guiding judicial
educators on curriculum designing. It deals with the practical issues that
emerge in the discourse development for judges, which is to determine which
selections from the great field of human inquiry can, if properly delivered,
raise professional competencies of the judges. This part lays down a broad
framework for curriculum development to professionalize the judiciary: makes a
distinction between curriculum and instruction; and suggests ways for involving
judges in the process of curriculum designing. [p. 184]
Part four is
devoted to the study of relevance of learning materials, their preparation, and
their utility for training sessions and thereafter. Incidentally, it also
covers the aspect of infrastructure and resource inputs that would be required
for the preparation of learning materials. It examines the relevance of
technological support for organizing learning materials. It examines the
relevance of technological support for organizing learning material in a better
way that the author personally experienced through the learning material
prepared by the JSB in the
Chapter 5 speaks
of how through the exercise of evaluation, the impact of the JE Discourse can
be measured. The author has paid tribute to Armytage at more than one place. At
p. 190 she writes:
For Armytage, who has voiced in different writings,
the need for evaluation of judicial trainings to understand their impact on the
justice administration system, evaluation is a model or methodology developed
to measure the feasibility, effectiveness and educational value of the program.
It is an applied means of research with recognisable method which is defined by
its purposes and goals, and is oriented towards utility by fulfilling an
inquiry for its client, being specifically and assessment of value. According
to him, evaluation involves making informed judgements on the overall value of
the learning program and whether or not the program accomplished what is set
out to do.[p. 190].
Chapter 5 is on
the subject of evaluating the JE discourse. Concluding this chapter the learned
author writes:
“Evaluation the JE discourse in
To learn about
the impact of training on judicial work done, interview could be taken for
sample of judges, which after two questions on attitude towards continuous
training can start with the following question:
“there are
various possibilities for work related training. Thinking about the past three
years, for you own job related education, have you read books and journals,
participated in conferences or work related courses?”[p. 213]
Those who answered yes, could be questioned about the
duration, goal, content, cost and benefits that accrued to them due to this
training. It is likely that training judges may have forgotten about some
training episodes and their impact on them which occurred for them long time
ago. Therefore, it is always a good practice to know the impact of training
held in last three years for them, proceeding to the interview date.[p. 213]
One important
question that needs to be asked from trainee judges is whether training
undergone by them helped them to do their current job better? And what private
and personal benefits were accrued to them as a result of training? For
instance, job promotion or wage rise or their being utilized as a resource
person for future training etc. [pp.213]
Chapter 6 is on
the subject of Globalization of the judicial education discourse. The learned
author has concluded it saying:
“As the importance of private international law
continues to grow, it is creating unprecedented consequences for the judiciary.
Its role under the constitutional scheme as providers of social service is
shrinking due to all kinds of judicial reform policies encouraging efficiency
drive and settlement culture. Judiciary is seen as service provider to the
consumers of litigation. The training discourse has to engage judicial comity
more than ever before to come together and discuss these developments, their
approval and disapproval to such trends.
Also, there is a
need to go further than Europeanization of law to appreciate the
political-legal dynamics of international justice. This calls for ‘cross-fertilisation
of ideas’[12] for widening horizons, for exploring and
experimenting on education curricula and methodologies so that the discourse is
able to bring improvement in the court systems around the globe and eventually
establish the ROL globally. Therefore the need for the globalization of the
judicial training discourse is felt.
With increase
international interaction and cross-fertilization of ideas afforded by the
globalization of the judicial training discourse, judges would be in better
position to appreciate regional and international contexts in an increasing
global world.
Whatever may be
differences in institutionalization structure of the judicial training
discourse from one nation-state to another, basic aim of the training has to
remain the same throughout globe and globalized training discourse will only
supplement and not replace the national level training discourse by offering
three distinct benefits of improving the method, results and resources devoted
for the national level training discourse.
Governments
around the world tend to look to each other when enacting new legislation even
without being forced to do so. This again is a development that is leading to
the convergence of judicial opinions on similar problems and the judicial training
discourse can provide them the methodology to do so.
Apart from EU
initiative to engage judges regionally to share and learn best practices though
the training discourse, there are hardly any important international efforts to
engage judges on global level to share the best practices developed through the
judicial training framework. The IOJT at the moment is only bi-annual
opportunity that judicial trainers get to come together on common platform to
discuss problem and share the best practices. The need is felt for more than
one event in a year and the funding is always an issue. The UN involvement in
judicial training is needed to get adequate funding support to develop and
support global alliance for the judicial discourse development by providing judicial
trainers regular opportunities to engage with each other. Also, in the absence
of the UN involvement, the financial burden of providing such opportunities is
shared by developed western countries. With the UN involvement, not only global
engagement will rise but will also provide chance to other countries to host
these conferences.
Chapter 7 is on
the subject of Limitation of The Training Discourse. The learned author has
concluded it saying:
Whereas promotions to judgeships at the high courts
and the supreme court of
Further, while choosing trainers for the judicial
trainings, the policy makers in the High Court and the Supreme Court, need to
take note that many jurisdictions are not insisting on qualified trainers. In
Further there is a need for a shift in the field of
training—from mere emphasis on trainees who are recipients of training to the
trainer who administers the training.[16] No actual benefit will accrue if the role of the
administrator of training is completely ignored and marginalized. The trainers
capacity building is equally important to maximize the trainees learning.
Training of trainers has been completely ignored and hardly any attention is
paid to the role of the trainers for organizational survival in a dynamic
environment of hyper competition.[17]
The thesis of
Geeta Oberio has become a standard thesis for certain reasons, such as,--
·
It is natural in
sequence.
·
It is simple and straightforward.
·
It educates how
to take and understand a problem.
·
Its approach is
scientific, logical and appeals to heart and mind.
·
It differentiates
between similar looking things with clarity.
·
It standardises
every thing becoming part of it.
·
It is result
oriented and the result is useful generally as well as specifically.
·
It goes deep into
the problem and removes ambiguities.
·
It is a speaking
thesis, ready to face and challenge any criticism.
·
It is full of
content and context and thus highly informative.
·
It is progressive
yet ignoring no useful past experience in the field.
·
It is a
combination of inquisitive and adversarial ways of purging the evidence.
·
It is humanistic,
leaving at no stage the human aspect of the study.
·
It is judicial
being fair and well considered allowing no bias and remaining within
jurisdiction relating to the topic and at the same time independent in final
opinion.
·
It has proved
that judicial education is not a subject of policy but a subject of requirement
and need of all actors in the process of justice delivery.
·
It has left no
ambiguity that both education and training are of equal importance for the
judges and it is a continuous process in the administration of justice. Judges
are to tackle ever new and fresh problems hence to remain equipped with fresh
knowledge and fresh techniques of dealing with them lawfully, properly and
correctly.
·
It is the work of
a student which teachers would like to read and re-read as the principles
found, discussed, appraised and applied are all golden principles which help
shine integrity and transparency in the administration of justice.
Thus, the book
in hand will be an essential reading for all those who deal with law, justice,
judicial administration, judicial policy, judicial education, judicial training,
legal education. Likewise, law teachers, judicial educators, justices, judges,
magistrates, law officers, court administrators, advocates, law students and
judicial aspirants will be equally benefiting form its contents.
In South Asian
context, the book is good addition to the literature on a subject which is
rarely studied and will help in more studies in other countries of
Judicial Education in Pakistani perspective:
Judicial
education has its roots in Islam. In an earlier article by the present
reviewer, it has been observed:[18]
The concept of judicial training is as old as the
concept of justice itself. With the advent of Islam in 7th Century AD, the
revelation of Qur’an and words of Prophet Muhammad (peace be upon him)
establish emphasis on justice, fairness and the rule of law. Holy Qur’an in
Surah al-Ma’idah verse 8 says: “Do justice, it is nearer to piety. This is most
quoted part of the verse.”
Early Islamic
studies establish that the judges or qadis appointed by Hadrat Muhammad, Messenger
of Allah (صلی
اللہ علیہ و
آلہ وسلم) were properly guided and trained before they assume the charge
of office of Qadi or judge. Thus:[19]
When Mu`adh bin Jabal was appointed as the governor
(with powers to administer justice, and also to be the Inspector-General of
education, as at that time in history mostly the three organs of state
generally vested in one authority / person) of Yemen, the Holy Prophet (Peace
and blessings of Allah be upon him) interviewed him as under:
O Mu`adh! How will you decide the
case?
I shall
decide them according to the Book of God (Kitabullah i.e. the Holy Qur’an).
If you do not
find (a direct text concerning the problem or issue before you) in the
Kitabullah, then what will you do?
I shall see the
Sunnah of the Holy Pophet (Peace and blessings of Allah be upon him) But if you
do not find there (a text in the Sunnah Rasulullah) what will you do?
I shall exert my
maximum capacity to make a personal judgment in the light of the similar cases
available in the Kitabullah and the Sunnah Rasulullah. I will leave no stone
unturned in this effort of exercising Ijtihad.
There is another
example of judicial education by the Messenger of Allah (صلی
اللہ علیہ و
آلہ وسلم) to Hadrat Ali (Allah’s mercy be on him) when the later was
appointed the Judge of Yemen. The saying goes as under:[20]
Certainly Allah will guide your heart and establish
your tongue when the parties will sit before you and you will not decide
between them till you hear the second party as you had heard the first party as
the second party will make you clear the doing of justice.
Coming back to
Whereas sovereignty over the entire Universe belongs
to Almighty Allah alone, and the authority to be exercised by the people of
And whereas it
is the will of the people of
Wherein the
State shall exercise its powers and authority through the chosen
representatives of the people;
Wherein the
principles of democracy, freedom, equality, tolerance and social justice, as
enunciated by Islam, shall be fully observed;
Wherein the
Muslims shall be enabled to order their lives in the individual and collective
spheres in accordance with the teachings and requirements of Islam as set out
in the Holy Quran and Sunnah;
Wherein
adequate provision shall be made for the minorities freely to profess and
practise their religions and develop their cultures;
Wherein the
territories now included in or in accession with Pakistan and such other
territories as may hereafter be included in or accede to Pakistan shall form a
Federation wherein the units will be autonomous with such boundaries and
limitations on their powers and authority as may be prescribed;
Therein shall
be guaranteed fundamental rights, including equality of status, of opportunity
and before law, social, economic and political justice, and freedom of thought,
expression, belief, faith, worship and association, subject to law and public
morality;
Wherein
adequate provision shall be made to safeguard the legitimate interests of
minorities and backward and depressed classes;
Wherein the
independence of the judiciary shall be fully secured;
Wherein the
integrity of the territories of the Federation, its independence and all its
rights, including its sovereign rights on land, sea and air, shall be
safeguarded;
So that the
people of Pakistan may prosper and attain their rightful and honoured place
amongst the nations of the World and make their full contribution towards
international peace and progress and happiness of humanity :
Now,
therefore, we, the people of
Cognisant of
our responsibility before Almighty Allah and men;
Cognisant of
the sacrifices made by the people in the cause of
Faithful to
the declaration made by the Founder of
Dedicated to
the preservation of democracy achieved by the unremitting struggle of the
people against oppression and tyranny;
Inspired by
the resolve to protect our national and political unity and solidarity by
creating an egalitarian society through a new order;
Do hereby,
through our representatives in the National Assembly, adopt, enact and give to
ourselves, this Constitution.
In Pakistani
context, where Articles 2 and 2A of the Constitution of Pakistan 1973 provide
that Islam shall be the state religion. It reads:[22]
2. Islam to
be State religion. Islam shall be the
State religion of
2A. The
Objectives Resolution to form part of substantive provisions. The principles and provisions set out in the
Objectives Resolution reproduced in the Annex are hereby made substantive part
of the Constitution and shall have effect accordingly.
Further, Islamic
provisions in the Constitution provide that no law against the injunctions of
Islam can remain on the statue book. Article 227 of the Constitution, thus,
reads:
227. Provisions
relating to the Holy Qur'an and Sunnah. (1)
All existing laws shall be brought in
conformity with the Injunctions of Islam as laid down in the Holy Quran and
Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall
be enacted which is repugnant to such Injunctions.
[Explanation:-
In the application of this clause to the personal law of any Muslim sect, the
expression "Quran and Sunnah" shall mean the Quran and Sunnah as
interpreted by that sect.]
(2) Effect shall be given to the provisions of clause
(1) only in the manner provided in this Part.
(3) Nothing in this Part shall affect the personal
laws of non-Muslim citizens or their status as citizens.
Chapter on
Fundamental Rights in the Constitution further provide powers of judicial
review to the Superior Courts to set aside any law which is ultra-vires the Constitution.
203D. Powers,
Jurisdiction and Functions of the Court. (1) The Court may, [either of its own motion or] on the petition of a
citizen of Pakistan or the Federal Government or a Provincial Government,
examine and decide the question whether or not any law or provision of law is
repugnant to the injunctions of Islam, as laid down in the Holy Quran and
Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of
Islam.
[(1A) Where the Court takes up the examination of any
law or provision of law under clause (1) and such law or provision of law
appears to it to be repugnant to the Injunctions of Islam, the Court shall
cause to be given to the Federal Government in the case of a law with respect
to a matter in the Federal Legislative List [] , or to the Provincial
Government in the case of a law with respect to a matter not enumerated [in the
Federal Legislative List], a notice specifying the particular provisions that
appear to it to be so repugnant, and afford to such Government adequate
opportunity to have its point of view placed before the Court.]
(2) If the Court decides that any law or provision of
law is repugnant to the Injunctions of Islam, it shall set out in its decision:
(a) the reasons for its holding that opinion;
and
(b) the
extent to which such law or provision is so repugnant; and specify the day on
which the decision shall take effect [:]
[Provided
that no such decision shall be deemed to take effect before the expiration of
the period within which an appeal therefrom may be preferred to the Supreme
Court or, where an appeal has been so preferred, before the disposal of such
appeal.]
(3) If any law or provision of law is held by the
Court to be repugnant to the Injunctions of Islam,
(a) the
President in the case of a law with respect to a matter in the Federal
Legislative List or the Concurrent Legislative List, or the Governor in the
case of a law with respect to a matter not enumerated in either of those Lists,
shall take steps to amend the law so as to bring such law or provision into
conformity with the Injunctions of Islam; and
(b) such law
or provision shall, to the extent to which it is held to be so repugnant, cease
to have effect on the day on which the decision of the Court takes effect.
Without going
into details a few injunctions are mentioned here, which may be gone deep into
and the light available therein and may be availed by the learned author in
some next edition.
The Holy Qur’an
says:
8. O ye who believe! stand out firmly for Allah, As
witnesses to fair dealing, and let not the hatred of others to you make you
swerve to wrong and depart from justice. Be just: that is next to piety: and
fear Allah. For Allah is well-acquainted with all that ye do. [5: 8]
“O ye who believe! Stand out firmly for justice, as
witnesses to Allah, Even As against yourselves, or your parents, or your kin,
and whether it is (against) rich or poor: for Allah can best protect both.
Follow not the lusts (of your hearts), lest ye swerve, and if ye distort
(justice) or decline to do justice, Verily Allah is well- acquainted with all
that ye do. [4: 135].”
There is, in the
storage of authentic ahadith, a dialogue recorded between the Messenger of
Allah (صلی
اللہ علیہ و
آلہ وسلم) and Mu`adh bin Jabal when the later was appointed the Governor
(and the Chief Justice) of
The Messenger of
Allah (صلی
اللہ علیہ و
آلہ وسلم) asked Mu`adh:
“O Mu`adh!
According to what you will decide?”
Mu`adh
submitted: “According to the Book of Allah”.
The Messenger of
Allah (صلی
اللہ علیہ و
آلہ وسلم) again asked:
“If you do not
find in it then?”
Mu`adh
submitted:
“According to the Sunnah of the Messenger of Allah (صلی
اللہ علیہ و
آلہ وسلم).”
The Messenger of
Allah (صلی
اللہ علیہ و
آلہ وسلم) again asked:
“If you find no
solution in it, then ?”
Mu`adh
submitted:
“I shall
exercise my personal judgement to decide that case.”
The Messenger of
Allah (صلی
اللہ علیہ و
آلہ وسلم) remarked:
Praise be to God! Who granted such courage and
fotitude (taufiq) to the messenger of His Messenger (صلی
اللہ علیہ و
آلہ وسلم) whereby His Messenger is pleased.”
There is
available in the record of transmissions that Hadrat `Umar bin al-Khattab (رضی اللہ
تعالیٰ عنہ) had written a letter to Abu Musa
al-Ash`ari which is a monumental document of Judicial Policy. It reads as
follows:[25]
“In the name
of Allah, the Beneficent, the Merciful.
Verily, the
administration of justice is a decisive ordinance (of God), and it is a
practice of the Holy Prophet (صلی اللہ
علیہ و آلہ
وسلم) which has always been followed. And when
the parties bring their case before you grasp all its aspects fully. Verily, a
right which is not to be enforced is useless. Maintain equality before the
people, in facing them, in your sitting, and in your adjudication, so that no
influential person may have hopeof your inclination towards him. No weak person
should become hopeless in the matterof getting justice from you. The proof is
on the plaintiff while the oath is on the one who denies the claim. The
reconciliation is permissible between the people. except a reconcilitation that
renders a lawful as unlawful or that renders an unlawful as lawful. There is no
prohibition to recall your earlier decision if you come to know of the true facts
later on as the truth does not become void and remains established and it is
better to return towards the truth than to remain in the falsity. Thorough
probe and understanding. Thorough probe and understanding regarding which you
feel some perturbation in your heart, the solution of which is neither in the
Holy Qur’an nor in the Sunnah of the Messenger of Allah (صلی
اللہ علیہ و
آلہ وسلم). Then find out the similar
and resembling precedents. so evaluate the affairs through analogy ad adopt the
judgment which is most pleasant to God and most in conformity with the truth
and justice. to every person, whether present or absent, who seeks an
adjournment, grant him the same. If the plaintiff presents the proof, he will
get his right and if he fails you can decide the case against him. It would be
more proper to do so when there is any just excuse available with a party and
it would serve as a light in the darkness. All Muslims are `adil (creditworthy)
witnesses against each other except a person on whom the hadd punishment had
been executed or a person who has been experimented as a false witness or
concerning whom there is doubt of being partial due to friendship or
relationship. There is no testimony for a person who is linked with the family
of another person to such an extent the he considers their benefit as his
benefit and their loss as his loss. And Allah Almighty is the Guardian of all
your secrets. And Allah almighty has kept the punishment away from you on the
basis of proof and oaths. Avoid wrath and disturbance. Do not feel agitated due
to (the rush or crowd) of the people. and avoid simulation before the litigants.
And verily the administration of justice is the occasion of execution of right
for which Allah will grant you rich reward and give you a good compensation.
One whose intention is clear on that which is the truth and one who maintains
himself on this behaviour of purity of intention, Allah Almighty ornaments him.
And the one
who ornaments for the sake of show to the people, although Allah knows that his
heart is not in accordance with his outward ornamentation, Allah disgraces him.
So what do you think of the award from Allah regarding what he accords here as
nourishment and of treasures of His Mercy in the Hereafter?
Salutations.”
Dr. Ali M.
Sullabi in his book Ali bin Abi Talib
has summarised the most important “Distinguishing Features of the Judiciary at
the time of the Rightly Guided Caliphs” in the following words:[26]
1. The
judiciary at that time was a continuation of the way it was at the time of the
prophet Messenger of Allah (صلی اللہ
علیہ و آلہ
وسلم); it adhere
to and followed its method. Religious education was widespread, and the people
were strongly connected to faith and correct beliefs. There was a strong
religious awareness and simplicity in the way claims and cases were dealt with,
and judicial procedures were straight forward. There were few claims and
disputes in relation to the size of the state and the number of the people and
countries it encompassed. Judges were chosen carefully and had all the
qualities required to fill the position.
2. The
judges then are regarded as giving a true and sound image of the Islamic
judiciary; hence that era became a reference point for researchers and Muslim
jurists. There judicial rulings and systems became a source of Shari`ah rulings,
judicial opinions and interpretation of Islamic Law throughout the ages on the
basis of consensus, at least, theoretically, among all scholars and schools of
thought even though there are some differences in some subtle details. An
example of that is the differences among the Imams as to whether the view of a
Companion may be used as evidence or not, as is discussed in the fields of
principles of Islamic Jurisprudence, classification of hadiths and the history
of legislation ….
3. The
rightly guided Caliphs and some of the regional governors examined some
disputes and were incharge of the judiciary, in addition to other gubernatorial
duties. They paid careful attention to dealing with disputes between people and
inspecting the market places.
4. In most
cities of the Muslim regions, the rightly guided caliphs appointed judges,
whose main job was to judge between people, in exclusion of other duties. For
this purpose, in a primitive form there appeared the separation of judiciary
authority from other forms of authority. In the major cities where judges were
appointed along side the governors, the governors had no authority in judicial
matters. In the other cities and regions, the governors were incharge of both
the judiciary and the other matters involved in governing and they were under
the supervision of the rightly guided caliphs.
5. Judges
of the time of the rightly guided caliphs had to work out their verdicts so
they would look at the text of the Qur’an and Sunnah directly and reach their
conclusions on the basis of what they understood. If they did not find any
ruling applying to an incident, they would examine precedents and consult their
contemporary scholars to try to reach a conclusion on the basis of what they
understood and then they would issue the ruling that they had reached by those
efforts.
6. Now
sources of the judiciary appeared at the time of the rightly guided caliphs, as
a result of the method to which they adhered, which is outlined above. Now the
sources of the judicial rulings were the Qur’an, the Sunnah, consensus,
analogy, legal precedents and individual opinion combined with consultation.
7. A
precise administrative system for the judiciary was developed during this time.
Both `Umar and `Ali (may Allah be pleased with them) sent well-known letters to
the judges and governors, highlighting the judiciary system and explaining its
constitution and methods. In addition to these letters, the Caliphs followed up
with the judges and monitored them. They discussed issues with them, asked how
they were doing and found out how they were handling their cases. They also
asked them to refer difficult and serious cases to them. This involvement
reached a peak in the time of `Umar (رضی
اللہ تعالیٰ
عنہ) but
decreased a little during the time of `Uthman (رضی
اللہ تعالیٰ
عنہ). It
weakened at the time of `Ali (رضی
اللہ تعالیٰ
عنہ), as a
result of the turmoil and civil war as well as the emergence of the autonomous
trend in Syria and the consequences to which it led, in addition to the
development of a number of power cases.
8. The
qualifications of judges were general in most cases and covered all incidents.
The authority of the judge was comprehensive and he has had complete freedom in
decision making. Later, during the era, there emerged the beginning of
specialisation among judges. Certain judges would be appointed to deal with
simple and straight forward cases, and others would be appointed to deal with
serious cases and major issues. Most of the Caliphs continued to examine cases
of criminal acts and hadd punishments, even though some of the governors did
that to. This era also saw the appointment of multiple judges at one time in
the larger cities and provinces such as Madinah, Kufa,
9. During
this era, they continued the follow the way of the Prophetic era in supervising
and checking verdicts and approving those that were in accordance with Qur’an
and Sunnah and those which were based on personal efforts and opinion. A
personal view and interpretation cannot be cancelled out by means of another
personal law and the interpretation but it may be cancelled out of its contrary
to the Qur’an and Sunnah.
10. Regular
salaries for judges were introduced to make their lives comfortable, and
courthouses and prisons were set up. For the first time, we see the reluctance
of the senior Companions to be appointed as judges. Ibn `Umar was asked by
`Uthman to serve as a judge, but he refused. Ka`b Ibn Yasar ibn Dannah was
asked by `Umar to serve as a Judge in
11. Judicial
procedures at this time were simple and straightforward. They involved only a
few steps, starting with listening to the case, then establishing proof and
evidence, issuing the verdict, and finally carrying out the verdict. Attention
was paid to the etiquette of judging so as to protect the weak, support those
who had been wronged, ensure equal treatment of disputants, establish the truth
and implement Sharia laws for all people, even if the ruling wnet against the
Caliph, amir or governor. In most cases, the judge would carry out the ruling
himself, if other parties involved would not do so willingly. the ruling would
be carried out immediately after issuing the verdict. However, it seems that at
the time of the Rightly Guided Caliphs, many new procedures and organizational
details were introduced. Scribes for judges were introduced at the time of
`Umar (رضی
اللہ تعالیٰ
عنہ); the
police and helpers for the judge and governor appeared at the time of `Uthman (رضی اللہ
تعالیٰ عنہ); and this system of criminal
investigation developed at the time of `Ali (رضی
اللہ تعالیٰ
عنہ), when he
separated the witnesses in order to find out the truth. This method became an
example to be followed.
In this context,
the judicial education and training in
To meet this legal and constitutional need of the justice sector, the
There are five other judicial academies, i.e., the
These Academies
are providing instructions on a variety of subjects and areas connected with
the justice delivery system. There is not much research into this field in
I am hereby
providing names of few Pakistani writers on judicial education / judicial
reforms with the titles of their works. I am sure that for any researcher of
the field of judicial education, these materials will prove initial thoughts to
begin with for more deep research into various issues with which justice sector
is confronting in present days. The list in not exhaustive, but guiding only.
Here it goes:
Hon’ble Mr. Justice Tassaduq Hussain
Jillani
Senior Puisne Judge, Supreme Court of
Pakistan
1. Delayed Justice and the Role of the ADR
2. Maladies of Delayed Justice
Justice ® Sardar Muhammad Iqbal
Former Chie Justice,
1. Code of Conduct for Subordinate Judiciary
Hon’ble Mr. Justice Mian Saqib Nisar
Judge, Supreme Court of Pakistan
1. Educating Judges
Hon’ble Mr. Justice ® Shafiur Rehman
Former Judge, Supreme Court of
Pakistan
1. Conduct of a Judge
Justice ® Dr. Munir Ahmad Mughal[35]
Former Judge,
1. Judicial
Education and Training: Its Importance in Islam
2. Awareness
of Contemporary Social Issues
3. Awareness
of Gender, Ethnic and Other Disadvantaged Groups
4.
5. Etiquettes
and Mannerism
6. Hudud
and Qisas Ordinances
7. Islamic
Concept of Justice
8. Islamic
Concept of Good Conduct
9. Judicial
Accountability
10. Judicial
Administration
11. Judicial
Ethics and Conduct
12. Judicial
13. Judiciary
as one of the Three Organs of the State
14. Self
Management
15. Senior
Junior Relationship
16. اسلام
میں قاضی کی
اھمیت
17. ادب
القاضی
18. پیشہ وکالت کی شرعی حیثیت
Ch. Hassan Nawaz
Former District and Sessions Judge
Former, Director-General, Federal Judicial Academy,
1. The role
of training in improving the quality of judicial dispensation
2. Professionalizing
District Judiciary Through Training Continuing Judicial Education
Dr. Khurshid Iqbal:[36]
1. Judicial
Education in
Muhammad Amir Munir:[37]
1. Judicial Education in
2. South
Asian Chapter of CJEI: A Blue Print for Establishing a Regional Judicial
Education Body in
3. Issues
and Challenges in Training Needs Assessment (TNA): Judicial Education in a Rule
of Law Perspective (Conference Paper)
4. Family
Courts in
5. A Visit
to the Commonwealth Judicial Education Institute,
Select Bibliography on Judicial Education and Training in
Apart from the
above writings, for researchers on the field of judicial education, as a matter
of relevance to the book under review, it will be beneficial to provide a comprehensive
bibliography on judicial education in
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