Candid Corner
- A concerted and coordinated effort to create judicial tyranny
“There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”
– Charles-Louis de Secondat, Montesquieu: “The Spirit of the Laws”
Its only when my mind races back in time to lay hands on the one institution which has played the most diabolical role in legitimising violations of the constitution and savouring the criminal indulgences of the rich and the mighty that I am reminded of the judiciary.
By validating the use of the emergency powers by Governor-General Ghulam Mohammad in 1954, Chief Justice Mohammad Munir laid the foundations of a judiciary which was destined to remain entangled in issues which neither fell within its domain, nor were they handled in accordance with the long-established principles of jurisprudence. Instead, exceptions were created periodically for turning the judiciary into an institution not engaged in dispensing justice without discrimination, but allowing it to be used to suit the predilections of those who commanded more power, more wealth or more relevance.
The process continued unabated through phases both military and civilian, thus accentuating the fall of a key pillar of the state which is integral to establishing the rule of law and ensuring that every institution would abide by it, without exception. Instead, ‘exception’ became the law over time with the ones feasting on illicit billions meriting a different treatment than those struggling to survive on the fringes. The courts would dutifully conduct special hearings on a holiday for the former and announce a decision as desired while the latter would wait for generations for even a chance to be heard.
Can one imagine a convict being allowed to travel abroad by a court of law against a simple undertaking that he would come back after his treatment in four weeks? Can one imagine that this would be supplemented by another undertaking by his brother, who himself is an alleged criminal, currently out on bail in multiple cases? Can one imagine the context of the judgement when virtually the entire families of these people are absconders in multiple cases pending in various courts of law in the country, and even their properties have been confiscated by the state? Can one imagine that this would be done knowing full well that the two brothers have a history of lying in Parliament, in public and before the courts of law?
To put the record straight, it is the Lahore High Court (LHC) which granted bail to Nawaz Sharif on medical grounds in the Chaudhry Sugar Mills case together with permission to get his treatment in Pakistan or outside. It is then that the Cabinet discussed the matter and granted him a one-time permission to travel abroad for treatment against the provision of indemnity bonds valued at Rs7 billion which, incidentally, is the cumulative amount of the fines imposed on him by the court together with a prison term of seven years in the Al-Azizia reference. The decision was challenged by the respondents in the LHC amidst a deafening uproar around the state of health of a convict with voices raised for dealing with the matter in a humane way. Instead of standing by the executive, the court decided that asking for the indemnity bonds was untenable and a simple undertaking, for whatever it would be worth in the end, would suffice.
This prompted the Prime Minister to appeal to the Chief Justice as well as Mr Justice Gulzar Ahmad, who will succeed the incumbent in December, to work for restoring public trust in the judiciary by dispensing equitable justice to the powerful and the stricken alike. There was no hidden threat or ‘taunt’ in the statement. Instead, it was a call from the Chief Executive of the country made in good faith. But, Chief Justice Khosa took exception and cautioned the Prime Minister to be careful while making such statements. He went on to recount the many achievements of the judiciary including convicting one Prime Minister and rendering another ineligible for the office. He also mentioned the judgement in the case of Gen Pervez Musharraf which is likely to be announced in the next few days.
There is a strong perception that a pernicious effort is afoot for creating an environment of judicial tyranny. That would, indeed, be a sad spectacle. Crime cannot and should not be matched with crime. Being a key constituent of the state, the judiciary should become both its face and its strength by incorporating the long-overdue reform within its echelons. Without that, the state will continue to be rendered weak and the judiciary would, inevitably, crumble under its own weight
The Chief Justice also said that the existing judiciary should not be compared with the one before 2009. Notwithstanding the contentiousness of the claim that 2009 marks the transition to a better judiciary, there is a long history of the institution which does not make for elevating reading. Mr Justices Muhammad Qayyum and Rafiq Tarrar may belong to times past, but Judge Arshad Malik and the one who demanded a guarantee for the life of a convict are manifestations of the post-2009 judiciary, as are the pending cases pertaining to the Model Town massacre, Baldia Town factory fire, May 12 mayhem and the dubious judgement in the Hudaibiya case. But, by far, the worst is the precedent that this case is going to set for the future.
Much that I may respect the Chief Justice, I would beg to disagree with his contention regarding the current judiciary being an independent one. Technically, it may appear to be so, but there is a lot that is still missing in terms of transforming the institution into an entity that would work without fear and look upon its supplicants without discrimination.
But one would agree with him if he made the statement in the context of acknowledging the weaknesses of the past which may still be there, and which need to be remedied. The glaring perception is that there is a long way to go before one would be able to call the judiciary independent unless, of course, there may exist a vast divergence regarding the meaning of the word ‘independent’ as it is understood by the institution itself and the people who suffer at its hands. The perception from within an institution is usually flawed on account of a natural partisanship for being a part of it. A more appropriate perception would be the one formed by the people who deal with it in various cases which are of concern to them.
Judiciary is not just another institution. It is a cardinal pillar of the state, the one that deals with dispensing justice on which the foundations of an equitable state and society are laid. An unjust dispensation would inevitably lead to the weakening of these foundations, thus generating strong feelings of having been wronged among those who inhabit the state.
My critique emanates from an inviolable faith that, without having a just judiciary, we cannot have a just state. The two are intertwined and must work together to help the evolution of a non-partisan state and society. It is even more critical in the current times when an effort, no matter how weak and how feeble, is underway to forge a culture of accountability.
There is a strong perception that a pernicious effort is afoot for creating an environment of judicial tyranny. That would, indeed, be a sad spectacle. Crime cannot and should not be matched with crime. Being a key constituent of the state, the judiciary should become both its face and its strength by incorporating the long-overdue reform within its echelons. Without that, the state will continue to be rendered weak and the judiciary would, inevitably, crumble under its own weight.
For genuine reform to set in, much may have to be sacrificed, a bloated ego being on top of the list. Let’s all begin there.
