Feisal Naqvi

Dispensing Justice

In law, Pakistan on June 25, 2008 at 3:46 am


One reason why dispensing justice gets taken so lightly is because it seems like such a piece of cake. Rocket science, we know, is difficult. But how difficult can it be to order restitution for a poor old widow? The answer is, pretty damn difficult

Some years ago, when Mian Sahib Senior was still enjoying his second term as PM, PTV initiated a television programme in which he was the star. The set for the festivities featured only the PM himself, a desk and a telephone. When the half hour of proceedings began, various oppressed people would call in, Mian Sahib would pick up the phone, and after listening patiently would tell one of his off-screen minions to do the needful. Lo, and it was so.

The tradition of the ruler actually functioning as a fount of justice is one which has strong roots in our culture. Haroon ur Rashid, the famous Caliph of Baghdad, was famous for slipping around town dressed like a beggar to discover what the masses were murmuring about and to provide instant relief, if necessary.

More recently, the courts of the Great Mughals reportedly featured a bell which any aggrieved person could ring to summon the badshah salamat himself and to demand that justice be provided. Even today it is fairly routine for the press to report that so and so secretary or such and such officer has held an “open kutchery” to deal with people’s complaints.

My point here is this: yes, it is good that our leaders are compassionate. But in a modern state, the availability of justice only through the intercession of the highest authorities is not a sign that all is well. Instead, it is a sign that the system of justice has collapsed.

The reasoning behind this argument is very simple. When our borders are threatened, our prime ministers do not volunteer for sentry duty. Mian Nawaz Sharif did not spend weekends shovelling snow in Siachen and, for that matter, neither did President Musharraf. In fact, had either of them shown up, they would probably just have gotten in the way. Dispensing justice is no different. It is an art that is best left to professionals who in turn must abide by specified rules and procedures.

One reason why dispensing justice gets taken so lightly is because it seems like such a piece of cake. Rocket science, we know, is difficult. But how difficult can it be to order restitution for a poor old widow?

Actually, the answer is, pretty damn difficult. If you start dishing out money (and help) to destitute old widows, then pretty soon you have to figure out how destitute and how old widows have to be before they qualify for prime ministerial assistance. Drawing those lines may not be rocket science, but it is not a piece of cake either.

Another piece of the puzzle is that the common law tradition has always had a tradition of lay judges. Ever since 1215, it has been the law in England that no man may be imprisoned except by a judgement of his peers. Similarly, the duties of a magistrate in England were normally handled by the local squire who, for the most part, did a competent job dealing with misdemeanours and breaches of the peace. The DC of yore was also very much the fount of all justice in his district, wearing both executive and judicial hats with aplomb.

But to return to reality, gentlemen, amateur hour is now over. Justice is no incidental virtue to be dealt with casually; it is, as per Rawls, “the first virtue of social institutions, as truth is of systems of thought.” In other words, just as no scientific theory is any good if it does not produce correct results, no system of governance is any use if it does not produce justice.

Let me now try and wrap together the various strands of this column.

While Pakistan has been blessed, from time to time, with judges of great character and competence, Pakistan has never enjoyed an even remotely adequate system of justice. But even keeping in view that very sorry record, the current crisis is the worst which has ever struck the Pakistani justice system. Rescuing Pakistan’s system of justice from its current nadir will require both a lot of good people as well as systemic institutional and legal reform. Both of those aspects are equally necessary.

We will have no justice without the return of the deposed judges. But without proper reform, we will not have very much justice even if they do return.

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