The Role of Judges

People judge the mistakes of others to the best of their own intellectual capacities. This is alright as long as people keep the ideal of welfare in front of them.

Moralists have different opinions on the final stage of the judicial process (the extent to which people have the right to penalize others).

If a person is tried and no action is taken as a result of the trial, the person in question will not have to face the possibility of a miscarriage of justice.

But if in the event of a miscarriage of justice the person is penalized on the basis of the verdict, an innocent person will be made to suffer. In other words, penalizing a person on the basis of a verdict involves considerable risk.

Judges can rarely say with total conviction that one person is guilty and another innocent.

Their verdicts are based on:

• the testimonies of witnesses
• the evidence
• the arguments of lawyers.

They have very little scope to verify whether or not:

• the witnesses are telling the truth or
• the evidence is genuine.

Experienced lawyers often win cases because even an eminent judge becomes confused by their arguments.

Moreover, if the experienced lawyers also happen to be retired judges, it will be very easy for them to win over the judge.

A judge who previously worked under an experienced lawyer will usually find it difficult to reject his or her evidence and arguments. In other words, such lawyers exert a personal influence over the judge.

In most developed countries nowadays, retired judges are prevented from practising law.

• This regulation is highly commendable.
• This leads to a better chance of justice.

However, there is still no guarantee that people will receive impartial justice, because in practice very few judges are able to verify whether the witnesses are telling the truth or whether the evidence is genuine, or to closely scrutinize the verbose arguments of experienced lawyers.

In order to determine whether the witnesses are telling the truth and whether the evidence is genuine, judges will have to take considerable help from detectives.

• The workload of detectives will increase.
• And so the number of detectives should be increased.

Merely increasing the number of detectives, however, will not solve this problem.

• If the seeds of corruption are hidden in the detective department itself, it will be virtually impossible to eliminate them.
• If detectives take bribes out of greed, the accused or the plaintiff will suffer as a result.

A country should have an adequate number of detectives.

• But it is impossible for a government to recruit many highly proficient detectives.

It will therefore be necessary for the investigations carried out by the detectives into whether the witnesses are telling the truth and whether the evidence is genuine to be verified again by the judges.

Jury System

Judges, however, do not need to take sole responsibility for this work in all cases. Part of it may be performed by a jury. This will result in an increase in the importance of the jury system.

The only criterion for selecting members of the jury should be honesty. Educational qualifications and social status should not be taken into consideration.

The final responsibility for a judgement should be with the judge, not the jury.

Judges should be carefully selected from people with irrefutable strength of character.

Generally, judges:

• are fewer than police or detectives
• have higher salaries

With proper efforts, it will not be impossible for a country to procure the competent judges that it needs.

Local autonomous bodies should select the jury members. Businessmen, brokers, political leaders, or party workers should not be jury members.

We cannot expect judges to agree with the jury in all cases because that would limit their authority. Nor should we expect that the members of the jury will make good judges, no matter how honest and upright they may be.

The judge and jury might arrive at different conclusions. In such a case, the judge’s conclusion should carry more weight.

However, it is possible for a judge to be partial, out to satisfy a personal grudge or in collusion with the accused.

If the members of a jury become suspicious of the judge’s conduct or dissatisfied with his or her behaviour during the course of a trial, the entire proceedings of the case should be brought to the notice of a higher judicial authority before the judge delivers his or her final judgement in court.

If the higher judicial authority shares the opinion of the members of the jury, it would be unwise to retain the judge.

Although I do not fully support the way in which justice was administered by the káziis [Muslim judges] in the Middle Ages, it would be useful if judges today emulated their dedication.

The káziis took great risk and personal responsibility when they disguised themselves and went to seek the truth at the scene of the crime, or tried to extract a confession from the accused or the plaintiff by using a clever ruse.

Such efforts would place greater responsibility on the judges. Thus, it might be necessary to:

• increase both their number and their salary, and
• increase their authority so that they could deliver judgements on the basis of their findings and experience.

However, no matter what efforts we make to ensure fair judgements, we cannot expect them to always be correct.

The jury may make a mistake, or both the judge and the jury may make a mistake.

• Both may acquiesce in injustice due to transitory emotions or excitement.
• Hence, under no circumstances can a judgement be taken as the final word.

If there is any doubt at all about the accuracy of a judgement, no punishment should be given.

Corrective Measures

From the moral viewpoint, if they wish to preserve social purity, people only have the right to take corrective measures and not punitive measures.

The law that controls every pulsation of human existence has the sole authority to penalize people, and no other.

Still, if people could have demonstrated that their judgements were absolutely free from defects or established that their system of punishment was legitimate, there would have been something to discuss.

But human beings are incapable of doing this.

So for the preservation of society, if people want to take measures against others, those measures will have to be corrective, not punitive.

Even if the judicial system is defective, if only corrective measures are taken then there is no possibility of anyone coming to any harm.

Before looking more deeply at corrective measures, it is necessary to closely examine the standard of judges.

Those who are permitted to sit in judgement over others and have the power to punish must be closely monitored to see whether any degeneration has occurred in their intelligence, capacity for deliberation, or moral character.

From time to time, as and when necessary, reports about the character and conduct of judges may be required by bodies representing the people.

A judge who is a drunkard, of dubious character or engaged in any form of antisocial activity has no right to pass judgement on others. I am emphasizing the personal standards of judges because the nature of justice is such that higher priority has to be given to temporal, spatial and personal factors than to legal processes.

In the event of conflict between the criminal code and the moral code, the moral code must take precedence.

While presiding over a trial a judge should not be prejudiced against the accused, but should consider whether he or she has committed a crime or not. If so, under what circumstances, and whether the crime was committed voluntarily or at the instigation of others.

This is the main point for consideration during a trial. The person on whom society has bestowed the solemn office of judge has therefore to be of a higher standard than an ordinary person.

A law student who has graduated with distinction from university’s law faculty will not necessarily make a competent judge.

The first thing for the judge to consider is whether the accused has committed a crime or not.