“Justice is blind”. This figurative expression originated from the blind-fold donned by Lady Justice – an allegorical personification of moral force in judicial systems. It symbolizes fairness, impartiality and the rule of law, applied blindly, without any regard for status – wealth and power.
Now, the question whether justice in ostensibly Islamic as well as republic Pakistan is blind!
One need not be a Rhodes scholar to tell that it is not. Even the blind can see that it is not blind. And, intimate “ophthalmologists” add, its eyes are fitted with bionic lenses. Which is why its decisions being mostly selective, are not always based on what has been done, but who has done.
Pakistan is an average developing society, where almost everyone has almost every conceivable human weakness; and, “makes hay while the sun shines”, depending, of course, on individual capacity and available opportunities.
The average citizen indulges in electricity theft; vendors and petty shop-keepers in adulteration and short-weighing; big businesses in tax evasion; bureaucrats in misuse of institutional power; politicians in nepotism, favouritism and corruption; and, khakis in overt or covert manipulations, blackmail and coups.
And, at least some of them in each category do get caught and are punished one day – the first three are fined or jailed; bureaucrats suspended, superseded or dismissed; khakis court-martialed, superseded and retired; politicians imprisoned, disqualified, deposed, exiled, even hanged.
But when we see the Supreme Judicial Council’s proceedings and its overwhelming empathy for even the accused holy cows, we are left wondering for a moment whether judiciary’s entire work-force is wo/manned by angels or manufactured with imported human material. However, a closer look tells that it is neither. It comprises average Pakistanis, just as good or bad in every sense as everyone else.
The late Asma Jahangir, a highly respected lawyer and human rights activist, while sharing impressions of Islamabad Bar Council with a TV channel, remarked that two of the three judges of the special court, trying a high-profile accused in Islamabad High Court (IHC) did not know much about the law. Again, according to a TV talk show, one of the top-most judges in Islamabad didn’t know how to write a judgement.
However, given their immense institutional power and the corresponding prestige, influence, and nuisance value flowing from it, most of the judges are most arrogant than most of public servants. They tend to believe that, like the British monarch, they “can do no wrong”; are untouchable being above the law; and, have the license to do anything.
This explains why they flout judicial norms and breach the principle of judicial impartiality. They hear cases, involving their children and family members. They treat the accused according to their social status, not the nature of offence.
Just to quote one example to illustrate this point, Justice Malik Qayyum, who authored the Judicial Commission Report on Match-Fixing in Pakistan Cricket in 2000, unabashedly acknowledged in a 2018 interview that he “was soft on Wasim Akram because he was a national hero and I didn’t want him banned for life.”
Judges grant bails to convicts, without any legal provision or precedent and, with tongue in cheek, disallow such indefensible decisions to form precedent for the future. They entertain only such precedents that facilitate them to deliver justice of their choice and prohibit citation of those that won’t. And, they get away with everything, including blatant espousal of the Doctrine of Necessity.
The Doctrine of Necessity is fundamentally opposed to the maxim that “Justice is Blind”. It is also totally repugnant to the very concept of justice in Islam.
The satanic doctrine was pioneered in Pakistan by Chief Justice Muhammad Munir in the landmark Federation of Pakistan v/s Maulvi Tamizuddin Khan (1955) case. The ruling justified dissolution of Pakistan’s Constituent Assembly by physically incapacitated and cognitively challenged Governor-General, Ghulam Muhammad.
The pliant judiciary of the state, which got independence from Britain in 1947, ruled that the Governor-General, as a representative of the British Crown, still retained residual powers under the Government of (British) India Act, 1935. Therefore, his authority could not be questioned.
It condoned the extra-constitutional action as necessary to prevent chaos and ensure smooth functioning of the state. The decision paved the way for undemocratic actions under the guise of necessity.
Three years later, a politicized and over-ambitious Commander-in-Chief, who had made it to the top through manipulated promotions, imposed martial law, overthrowing the civilian government of Prime Minister Feroz Khan Noon.
The compromised judiciary readily validated his unconstitutional actions. In the State v/s Dosso (1958) case, Chief Justice Muhammad Munir upheld the military coup under the Doctrine of Necessity, citing Hans Kelsen’s theory, which professes that a successful revolution creates its own legitimacy.
The decision not only legalized the self-appointed Field Martial’s illegal actions but also gave him the license to demolish the country’s democratic fabric.
Then onwards, the judiciary acted as an enabler of authoritarian rule, failing to safeguard democratic principles and dispense justice in critical cases, such as Fatima Jinnah’s contentious defeat in the rigged 1965 elections.
(To be Continued)
The Doctrine of Necessity is fundamentally opposed to the maxim that “Justice is Blind.”
The writer is a freelance columnist.