| by Dr Reeza Hameed
( February 2, 2013, London, Sri Lanka Guardian) In a speech made at the ceremony to welcome him, the new appointee to the Chief Justice’s post had quoted ‘the moving finger’ verse from Omar Khayyam’s Rubaiyyat and had said that Providence had brought him to the temple of justice.
Khayyam was a brilliant mathematician, a philosopher and a poet. Khayyam comes out as a fatalist – as well as a hedonist and an agnostic- at least in Fitzgerald’s translation, and it is in Fitzgerald’s translation that Khayyam’s fame has endured. Other translators such as Swami Govinda Thirtha have recognised the spirituality in Khayyam’s poetry and there is much more to his poetry than fatalism even in Fitzgerald.
For instance, Khayyam was conscious of the evanescence of earthly glory, an idea that he conveyed in the following verse.
They say the Lion and the Lizard keep
The courts where Jamshyd gloried and drank deep;
And Bahram, that great Hunter – the Wild Ass
Stamps over his Head, but cannot break his sleep.
The ‘moving finger’ verse from Khayyam reads:
The Moving Finger writes; and, having writ,
Moves on: nor all thy Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all thy Tears wash out a Word of it.
In this verse Khayyam speaks of the inevitability of fate, and the inability of man to change it. He repeated this idea in another of his famous verses.
'Tis all a Chequer-board of Nights and Days
Where Destiny with Men for Pieces plays:
Hither and thither moves, and mates, and slays,
And one by one back in the Closet lays.
It is quite unlikely that the new appointee would have intended to say that the post had been thrust upon him by Providence and that he had no choice but to accept it. If Providence, indeed, had a hand in his appointment, then what role did Fate play in the ousting of its previous occupant?
In this connection the story of the Jurist Abu Haniffa comes to mind. Abu Haniffa was the founder of a school of Islamic Jurisprudence and was known for his independent views which did not go down well with the Caliph of his day. The Caliph offered to make Abu Haniffa his Chief Judge in the hope that he could control Abu Haniffa. Rather than accepting the offer as one that Providence had sent him, Abu Haniffa refused because he did not wish to compromise his independence.
Servants of the people
In his welcome speech, the current occupant had assured that he would serve the people as their servant and that justice would not be a cloistered virtue under his dispensation. Judges are servants of the people like those elected to parliament are.
The veteran British MP Tony Benn once referred to a member of parliament as an employee of the people having about 60,000 people as his employers. Tony Benn was making a point about the accountability of members of parliament and their relationship to their electors.
He did not consider himself superior to his voters and believed in the sovereignty of the people rather than in the sovereignty of parliament. To him, the sovereignty of the people represented “a higher order of sovereignty because the people can lend power to Parliament for a period and then take it back again.” To emphasise his point he continued: “I think it is always worth remembering that Parliament is a derivative of popular sovereignty and not its superior.”
Justice is not a cloistered virtue
The phrase ‘cloistered virtue’ was first employed by Lord Atkin in a leading case involving contempt of court. He said: “Justice is not a cloistered virtue; she must suffer the scrutiny and respectful, even outspoken criticism, comments by ordinary men.”
It is right that justice should suffer the scrutiny of right thinking men but it is equally important that there is no interference with the judiciary and that judges do not give in to interference, especially from those in power. Power must be exercised to serve justice but judges must not court power but act as a check on it.
Speaking of the independence of the judiciary, Winston Churchill said that it provides
"the guarantee of freedom and the equal rule of law... It must, therefore, be the first concern of the citizens of a free country to preserve and maintain the independence of the courts of justice, however inconvenient that independence may be, on occasion, to the government of the day."
Detachment is a necessary and unavoidable condition of the judges’ existence because of the nature of their work. Again, it was Churchill who said: “A form of life and conduct far more severe and restricted than that of ordinary people is required from judges and, though unwritten, has been most strictly observed. They are at once privileged and restricted. They have to present a continuous aspect of dignity and conduct.”
Judges do not have to be divorced from reality or lose touch with the people but judges cannot be guided by the opinion of the public or their representatives. As was said in a South African case, there would be no need for constitutional adjudication if public opinion were to be decisive. “The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised ... The very reason for establishing the new legal order … was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and weakest among us that all of us can be secure that our own rights will be protected.”
Justice as fair trial
Judges dispense justice. It is not for nothing that the place where justice is dispensed is referred to as ‘a temple of justice’.
Justice is much more than mere ruminations about philosophical and ethical questions on right and wrong. The English common lawyers formulated justice as fair trial. Lord Denning identified the essential principles of a fair trial, and declared that the first of those principles is the requirement that a judge should be absolutely independent of government.
An entire chapter of the Dhammapada is devoted to explaining the essence of justice. For instance, it says that:
Not by passing arbitrary judgments does a man become just; a wise man is he who investigates both right and wrong.
He who does not judge others arbitrarily, but passes judgment impartially according to the truth, that sagacious man is a guardian of law and is called just.
Conclusion
One needs to ponder the intervention of Fate and Providence in the administration of justice. Fate seems to have played a cruel joke in the ousting of the previous Chief Justice, creating a fait accompli for Providence to elevate the present occupant to that prized position. In so doing did these forces allow themselves to deviate from the just path laid by the Dhamma?
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