::Judgment Writing

…posted by Pakistani Law Firm

Mr. Justice (R) Muhammad Bashir Jehangiri

The judgment is not an ornate diction of Fancies of a brain, it is strictly an oracle Of findings arrived at by a trying mind. One way, it wraps justice in word; the Other ways it exposes worth of the Judge.

INTRODUCTION

WHAT IS A JUDGMENT?

In its broadest sense a judgment is the decision or sentence of the law given by a court of justice or other competent tribunal as a result of proceedings instituted therein, or the final consideration and determination of a court on matters submitted to it in an action or proceeding, whether or not execution follows thereon. More particularly it is a judicial determination that, on matters submitted to a court for decision, a legal duty or liability does or does not exist, or that, with respect to a claim in suit, no cause of action exists or that no defence exists. In a broader sense here defined, a decision of any court is a judgment. In a narrower sense the term “judgment” is limited to a decision of a court of law. Under most codes of procedure, judgments are defined in substance as the final determination of the rights of the parties in an action or proceedings. In America unlike Pakistan, the terms “judgment” and “decree” are more or less synonymous and inter­ changeable in code practice. The terms “judgment” and “order” in their widest sense may be said to include any decision given by a court on a question or questions at issue between the parties to a proceeding properly before the court.

A judgment is the judicial act of a Court by which it accomplishes the purposes of its creation. It is a judicial declaration by which the issues are settled and the rights and liabilities of the parties are fixed as to the matters submitted for decision. In other words, a judgment is the end of the law; its rendition is the object for which jurisdiction is conferred and exercised, and it is the power by means of which a liability is enforced against the debtor’s property. A judgment constitutes the considered opinion of the court and is a solemn record and formal expression and evidence of the actual decision of a law-suit.

As a general rule, courts are not constituted for the purpose of making advisory decrees or resolving academic disputes. A proceeding seeking an advisory opinion or judgment will not find favour at the hand of the judiciary. A mere advisory opinion upon an abstract question is obviously not a judgment at all when no parties are to be bound, and the rights of no one are directly affected.

The terms “judgment” and “order” in their widest sense may be said to include any decision given by a court on a question or questions at issue between the parties to a proceeding properly before the court.

ESSENTIALS OF JUDGMENT

It is essential to the validity of a judgment that it be based on, and be in conformity with, recognized principles and fundamentals of law. Where statutory powers are conferred on a court of inferior jurisdiction, and the mode of executing those powers is prescribed, the course pointed out must be substantially pursued, or the judgment of the court will be void. The validity, force and effect of a judgment must be determined by the laws in force at the time and in the State or country where it was rendered. It is essential to the validity of a judgment that it be the sentence or adjudication of a duly constituted court or judicial tribunal. Judicial powers are sometimes conferred on tribunals not technically courts, and decisions by such tribunals, in the exercise of powers thus conferred, are considered as judgments. According to some authorities, it is essential to the validity of a judgment that it be rendered by a court sitting at the time and also in the place authorised by law, the tribunal not being otherwise a court in any legal sense, and the proceedings being, therefore, coram non-judice. In some cases, however, it has been held that the fact that a term of court at which a judgment was rendered was held at a time other than that prescribed or authorised by law, while rendering the judgment erroneous and constituting ground for its reversal, does not render the judgment void; but a contrary view has also been taken and a judgment rendered under such circumstances has been held to be void. It has been held that the mere fact that the court was held at a place other than that directed by law will not of itself render the judgment void, as where the court errs with respect to the location of the country seat. Judgments should be rendered in open court and not in chambers. In Pakistan, according to section 2(9) of the Code of Civil Procedure, judgment means the statement given by the Judge of the grounds of a decree and order, and Order XX, Rules 1 to 6, Civil Procedure Code, lay down the law in Pakistan relating to the pronouncements, signing and contents of judgments. These relate to judgment of civil courts. As regards criminal courts, sections 366 and 367 of the Code of Criminal Procedure, 1898 lay down the mode of delivery, language and contents of judgments. Sections 15 to 20 of the Code of Civil Procedure prescribe the place of suing and section 21 lays down as to when objection to territorial jurisdiction is to be taken. Chapter XV deals with the place of inquiry or trial of criminal proceedings and trials and section 531 Code of Criminal Procedure, 1898 states when proceedings in wrong place can be set aside.

Illegal constitution of the court with respect to the Judges sitting renders the judgment absolutely void. In the absence of a constitutional or statutory provision, forbidding a disqualified Judge from acting, a judgment rendered by a disqualified Judge is voidable but not void. It is essential to the existence and validity of a judgment that the decision shall have been rendered in an action or proceeding before the court, in some form recognised and sanctioned by law. Where the jurisdiction of a court depends on the amount in controversy, a judgment for a sum in excess of the amount over which the court has jurisdiction is void.

Judgment has to self-contained and it must show that the court has made an independent application of its mind to the facts of the case and the evidence adduced by the parties. It must reveal a consideration of such evidence and the conclusions to which such evidence would persuade. Where the finding, in a criminal case, is as to the guilt of some of the accused while to the innocence of others, the finding has to be supported by reason.

FORM AND CONTENTS OF JUDGMENTS

Strict formality ordinarily is not essential to the validity of a judgment, and substantial compliance with statutory requirements is sufficient.

A judgment should not decide more than what is necessary in law under which the proceedings have been taken. For example, in a proceeding under section 145 of the Code of Criminal Procedure, the Magistrate while deciding question of possession, cannot define shares of co-sharers. He has to find out only as to who was in actual possession.

In a criminal case, with regard to the conclusion that accused cannot be tried under Acts providing for treatment and training or rehabilitation of youthful offenders, the court must record special reasons for not doing so. When the defence musters up a number of witnesses, the court has to be extremely cautious and careful to enter verdict of guilty. It may do so only if the complainant’s version is supported by some clinching circumstance of such character and quality as may reasonably assure the judicial mind about the truth of the real position against the accused.

Stating inclination merely is not sufficient, but the court must give reasons for disagreeing with defence contentions. When the judgment neither gave reasons for disagreeing with defence contentions nor adverted to the patent lapses of the investigations, it was held that accused were entitled to benefit of doubt. The defence evidence is as important as the judgment cannot be said to be complete.

In a case where truth cannot be separated from falsehood on account of the two being inextricably mixed up, the court cannot make out any absolute new case for the prosecution by conjecture. While separating the grain from the chaff, the court should not break the grain and mix the same with chaff.

The proper course is to scrutinize the prosecution evidence first and then to pass on the defence case. However, the reverse course, though irregular would not vitiate judgment.

JUDGMENT SHOULD BE COMPLETE IN ITSELF

A judgment should be complete in itself and contain within its four corners the mandate of the’ court, without extraneous references, and leaving open no matters of description or designation out of which contention may arise as to the meaning. It should not leave open any judicial question to be determined by others.

LANGUAGE OF JUDGMENT

Although it has been held that, as a matter of practice, established precedents with respect to the language of a judgment should be followed, apart from statute no particular form of words is necessary to constitute a judgment, provided the words used are such as to indicate a final determination of the rights of the parties and the relief granted or denied.

JURISDICTIONAL RECITALS

Except as statute or court rule may otherwise provide, the judgment of a court of general jurisdiction need not, as a general rule, contain a recital of the jurisdictional facts.

A JUDGMENT MUST BE DEFINITE AND CERTAIN

A judgment must be definite and certain in itself, or capable of being made so by proper construction. It must fix clearly the rights and liabilities of the respective parties to the cause.

CONDITIONAL JUDGMENTS

As a general rule, a judgment must not be conditioned on any contingency; but in a number of instances, as where equitable relief is awarded, conditional judgments have been sustained.

ALTERNATIVE JUDGMENTS

As a general rule, a judgment should not be in the alternative, although under some circumstances, such as in actions for the specific recovery of property, an alternative judgment may be proper.

DICTA-BINDING FORCE

Statements which are not necessary to the decisions which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand (usually termed ‘dicta’) have no binding authority on another court, though they may have merely persuasive efficacy. Rights of property should not be upset, however, merely because, when historically traced through the reports of centuries, they rest upon a dictum, nor is it right to distrust a practice that follows on dicta when it is the practice and not the dicta that forms the binding authority. Even dicta of individual members of the House of Lords (in England), although of great weight, have been held not to be of binding authority; but, when dicta have been expressed unanimously by all the Judges of Divisional Court, it would not be seemly for the Judges of another Divisional Court not to follow them. Interlocutory observations by members of a court during the argument are not judicial pronouncements and do not decide anything.

JUDGMENT BASED ON EVIDENCE – FRAGILITY OF MEMORY

Very few of us are careful and accurate observers. Those of us who are are at our best when we can check our observations by repetition, which is exactly what is impossible in most matters where human testimony is required in court. The tricks played by our senses are terrifying to the seekers of truth. The evidence which is given is often not even a recollection of the events, but only a recollection of what the witness said about it soon after. A policeman will quite often be able to relate only what appears in his note, not by any means the least satisfactory kind of evidence. If one seeks to take him out of his framework, and to re-see the events in his mind’s eye, so some detail, not regarded at moment but turning out to be important, can be recovered, in nine cases out of ten he cannot do it, though he honestly tries. His memory is of his note, of an observed happening. It needs no psychologist to show that, although instances occur of delayed reproduction, memory generally fades with the passage of time, and that, when a witness is required more than once to recall an event, his act of recalling on a subsequent occasion may be merely an imperfect memory of what he said on an earlier. If this is true, it is an interesting commentary on the legal rule whereby the witness’s statement, given in court perhaps months after the event, is the real evidence while, his original proof of evidence, given perhaps within hours of the event, and his deposition at the preliminary hearing, given a few days or weeks after the event, are referred to only for the purpose of contradicting him and not as independent evidence. The legal insistence upon the necessity for an oath and upon oral statement in court appears in this light to be irrational. It may also be pointed out that the rule excluding previous statements as evidence of the truth of the facts stated is fundamentally inconsistent with another rule, namely, that a witness who professes that he has forgotten the details of an event can refer to a memorandum of it which he made previously (not on oath, or subject to cross-examination) and have this memorandum accepted as part of his evidence.

Gentlemen,

It is a privilege to be with you. The reason, which prompts me to be amongst you, as often as I can spare time, is to get the feed back to what is happening at the hands of, and to the judiciary?  What the future judiciary has in store for itself? How best the judiciary can improve its image and its performance? How best it can command the confidence and respect of the people? How best it can adapt itself to the requirements of the modern age?

I assume and proceed on the assumption that you have read all the four papers written by learned judges on the Art of Judgment Writing and discussed in earlier courses. Four such papers were made available to me and I have read all of them. If you have not so far read them or omitted to read anyone of them please make it a point to read them before you complete your period of training here. Do not allow earnest efforts earlier made for your benefit by persons whose time is precious, go waste and un-noticed by you. Why deny yourself an opportunity of adding variety and dimension to your knowledge, on a subject so relevant and so abiding that you will have to directly or indirectly concentrate on it throughout your service career and may be even after that. As you move up, hearing of the arguments for hours, for days, may be for months will not be a problem. The real problem starts when one is called upon to register the impact of those arguments, assimilate them, analyse them, reproduce them with precision and accuracy, and draw conclusions sound in law, consistent with the value system prescribed and envisioned by the society. Enormity of the burden increases in proportion to the precision and conciseness achieved in doing so.

Fortunately, for us the basic and broad requirements of a judgment are prescribed and formalized. On the civil side, judgment has been defined in clause (9) of section 2 of C.P.C.; distinguished from a decree in clause (2) of section 2 C.P.C. The structure of a trial court judgment is indicated in order xx rule 4, sub-rule (2) and that of a small causes court in sub-rule (1) of the same rule. The structure of the appellate judgment is indicated in order 41 Rule 31 C.P.C. The reliefs to be considered are interest (section 34), costs (Section 35) and compensatory costs (section 35-A). The extent of relief to be granted by the appellate court is provided on Order 41 rule 33. On  the criminal side the requirements of a judgment at regular trial are indicated in section 366 of Cr.P.C. and of a summary trial in sections 236 and 264 of Cr.P.C. These provisions of law stand supplemented by Rules and Orders approved by the High Court. For  civil courts, these instructions are contained in Chapter 11-A Volume I, for the criminal courts in Chapter I-H of volume III. It is a different matter, that you will be the luckiest man in Pakistan if you are able to get an official print of any volume of High Court Rules and Orders. Even the Supreme Court has difficulty in collecting and making avilable all the five volumes at one time. This is extremely unfair to those who are required to administer the law and follow these instructions. The Supreme Court has the distinction of being empowered by the Constitution in express words (Article 186) to do complete justice.

Nowhere you will find prescribed at one place the difference between a criminal case a civil case, the difference in attitude and approach in handling them and ending up with the judgment. You should note however, one distinctive feature, very relevant for judgment writing. It is that the rule of preponderance of evidence prevails in civil matters while that of beyond reasonable doubt in a criminal case. See to it that your judgments follow this requirement.

The rule of receiving evidence of analyzing it and drawing inferences from it remain the same but the overall effect is materially different. Further, in criminal cases this requirement  of proof beyond reasonable doubt should not take one into the realm of possibility and impossibility. On should confine oneself, while seized of criminal matters to the realm of probabilities arising out of an over-view of the whole case without too much emphasizing any single factor.

The judgments, on account of their style and language have been classified into the following broad categories:-

(i)                            Magisterial or imperative.

(ii)                           Laconic or sententious.

(iii)                          Conversational or homely

(iv)                          Refined or artificial.

(v)                           Demonstrative or persuasive.

(vi)                          Tonsorial or agglutinative.

For understanding these categories fully and also for finding how interesting and elevating judicial work can become, I would commend to you at this stage of your service career a book  named voices in court, a treasury of the law edited by William H. Davenport. It covers all aspects of judicial work.

What is the object of writing judgment in the manner prescribed by law. Robson quoting Cecil Carr provides it in the works that follow:-

“reasons ought of course to be given for legal decisions, otherwise the students cannot learn the law, practitioners cannot find arguments, parties cannot feel that their cases have had serious attention and courts of appeal have nothing to upset or confirm”.

In the two writ petitions filed in the High Court, the court recorded in one the order ” This writ petition is rejected”, in the other “this writ petition is dismissed”. The Supreme Court (PLD 1959 S.C. 272) observed:

“There are two basic objections to this procedure (1) the Supreme Court has no idea of the grounds on which the application was dismissed and is thus deprived of the High Court’s opinion and (2) the non-suited party has no means of knowing that the questions raised by him were considered by the High Court.”

In another case a writ petition was dismissed with the order ” This application is rejected, as there is no substance in it”.  The Supreme Court observed “such an order, we regret to say, does not disclose a proper application of the mind of the High Court to the merits of the case that was before it”.

If you have ever noticed the gown that Judges are required to wear, you will find the sleeves stretch out beyond the limits of the arm and hand down. This is so as explained in (PLD 1969 S.C. 278 at page 292) in words, which follow:

“There is a well known adage that a Judge must wear all the laws of the country on the sleeve of his robe”.

If it were so in an examination all, it will be a case of being caught red handed. However, it is permissible in a Court room.

There is a value system, which permeates all Judgments. I will illustrate it by two cases one came before the Supreme Court last week and another one thrown up in my judicial hierarchy about thirty years ago, many in between.

As Incharge National Saving Centre, a Clerk, amongst other derelictions.

(i)            Showed in the records deposit of Rs. 1400/- on 31.1.1980 which was in fact made on 6.1.1980, thus amounting to tempering misappropriation of government money.

(ii)           Paid out an amount of Rs. 4000/- on 13.8.1979 from an account which had a balance of rupees five only but showed the withdrawal on 19.1.1980 when the deposit of rupees 4000/- was also shown made therein thereby causing loss of money to Government for that period.

His record of service showed that he had been warned several times. he was earlier proceeded under discipline rules twice, ending once in with-holding of increment and censure in the other, both in 1982.

Before the departmental authorities he admitted the factual aspect of the charges but explained that due to confidence in the lady account holder who was his relative he overpaid the amount and kept on reminding her and when she repaid the amount on 19.1.80 he redeposited the same.

The relevant portion of the judgment of Service Tribunal announced on 10.1.1988 reads as hereunder:-

” The learned counsel for the appellant has not pressed the appeal on merits but he has contended that there was no misappropriation of Government money and the lapses on the part of the appellant reflected in the charge sheet did not call for the onerous penalty of removal from service…….

We find from the allegation contained in the charge-sheet that there was late posting of the money in the relevant registers, but there was no misappropriation of the funds. We  agree with the learned counsel for the appellant that the penalty of removal from service for such allegations was excessive. Since the appeal has not been pressed on merits we dismiss it as such but modify the penalty and convert it from removal from service to that of stoppage of three consecutive increments with cumulative effect. The appellant shall be reinstated in service forthwith with all other admissible back benefits”.

You should know that under Article 212 (3) of the Constitution an appeal against the judgment of the Service Tribunal lies only on a question of law public importance. Leave to appeal was granted to examine “whether even after admitting temporary embezzlement of funds in a financial institution and not pressing the appeal on merits, the Service Tribunal could justifiably reduce the punishment to stoppage of increment and continue him in service”.

When the appeal was argued the debate centred round the question whether the Service Tribunal Judgment at all raised any

question of law of public importance to justify intervention of the Supreme Court under Article 212 (3). The thirty years old case was criminal matter. A group of girls of a local college had gone to Hiran Minar. A group of boys also gone there. The boys molested the girls. A criminal case was got registered. The trial Magistrate acquitted all the boys holding that the girls should not have gone to Hiran Minar  because their going there in group in that manner incited and provoked the boys. The judgment was of course set aside when it was brought to the appellate/supervisory court on the ground of distorting the value system prevalent and envisioned by the law. It is a reported judgment of the 1950’s.

In handling the cases at the judgment stage, there are certain things which must be avoided. The first is that when too many adjournments are granted on the ground that the learned counsel is not prepared for arguments, the conclusion drawn is that either the Court has not exercised proper control over the conduct of the case has been over-indulgent or that such adjournment relates to the delay on the part of the Court in preparing the judgment and the unpreparedness of the counsel to argue the case is used as a veil. In either case it reflects adversely on the presiding Officer of the Court. The second thing to be taken care of is that all the grounds taken up in the Memo of appeal or at the time of argument should find mention in the judgment and there should also be an express mention of the grounds which though taken at one stage or the other  during the course of the hearing but were abandoned finally. The appellate courts ordinarily lay the blame on the counsel for not urging the grounds at the stage of arguments if it is not dealt with in the judgment. To me it appears to be unfair to the counsel because they have no control over the writing of the judgment. Thirdly, the value system is under great challenge and in doubt these days. That doubt should not find a place directly or indirectly in the judgment. The judgment should  confine itself to the law and the value system enshrined in the law Independently of it no attempt should be made to superimpose either individual or any other value system. Fourthly , your judgment should be as simple, as short, as direct and as intelligible to as large section of the population as you can make it. The days are gone when the people had time to read a long judgment and appreciate all its niceties. More and more people want to understand the impact of judicial adjudication because as Dean Roscoe Pound once remarked, the people understand the question litigated and every one has ready answer for it also but what  they do not understand is such tardy proceedings and involved judgments. While visiting the training institutions in America in 1987 I found the trainees receiving instructions on the subject of judgment writing with the use of word processor and other high-tech equipment. On my inquiry as to who was instruction them in judgment writing, I was told that it was a Professor of an Engineering University dealing with the subject or report writing. On enquiring further about it I was told that because for seeking re-appointment the Judges have to go through an election they must through their judgments reach the people and satisfy them with regard to the justness, correctness and fairness or their adjudication. The reason may not hold good in our country but if we want to make up hold good in our country but if we want to make up for the prevailing illiteracy and ignorance, it is one of the ways viz. to simplify our instruments and media so as to reach as many people as is possible.

About these ads

Enter your Question here

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s