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Wednesday, March 12, 2008

The Judge's Oath

Justice (retd) K M A Samdani has written a short article in today's Nation that should be read in its entirety. The bold italics are mine-t

All members of the superior judiciary function under an oath of office prescribed in the constitution. No notified judge is in fact a judge, or can function as such, unless he swears to protect, preserve and defend the constitution. In my opinion, a so-called judge, who breaks his oath of office, is no judge. Such a judge is neither entitled to his remuneration (including the privileges) nor entitled to issue orders or decrees under the seal of the court to which he has been appointed.

A judge breaks his oath in two ways - either by declaring an act or order valid which is in conflict with the constitution or by taking another oath which negates the constitutional one. In other words, only a judge who always upholds the constitution regardless of the prevailing circumstances or the possible consequences is, in fact, a judge.

Such a judge alone is worthy of holding the august office of a High Court or the Supreme Court judge. A compromise on this point is tantamount to compromising the integrity of the State. I wish the members of the judiciary, the bar, and the public (elite) understood this.

Our country is on the brink of an apocalypse. It has come to such in the ultimate analysis, only because of the failing of our judiciary. Are the lawyers aware of this? I wish them every success in their current movement which has also gained support from some of the political parties. But what they are trying to achieve is only the tip of the iceberg. What about the judges who refused to take oath under the PCO of 1999 and chose to adhere to their constitutional oath?

In my opinion, they are still judges if they have not crossed the upper age limit of 65 years, including the then chief justice, Mr Justice Saeed uz Zaman Siddiqui. Those of them who have already reached the upper age limit of judges of the Supreme Court, are entitled to their salaries and other benefits until they reached such limit.

The same principle applies to similarly placed judges of all the four High Courts. Such of the judges as took oath under a PCO in fact ceased to be judges on the date they took such an oath. This fact has got to be recognised if logic is to prevail. If logic does not prevail in this situation, in which lawyers and judges are involved, where else, in our national life, will it? Therefore, my advice to the members of the bar and bench is not to make compromises in their effort to put the country back on the even heal.

An effort which is directed towards part achievement of rectification of errors is even worse than no effort. This advice is also meant for the politicians who are shortly going to be in power and manage the affairs of the state. Be logical in whatever you do. The so-called pragmatism is poison. It is wrong to think that every vice is permissible in politics. Only uprightness pays.


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