Daily Times

The entrance to the Nazi Camp at Aushwitz bore the infamous sign ‘Arbeit Macht Frei’. This is a German phrase meaning ‘work will set you free.’ It was one of the manifestations of the sick and twisted minds of the captors. The political prisoners, many of whom were Jews were forced to carry bags of sand from one corner of the camp to another and so forth. Hence, the cruel statement was a mockery of their physical exhaustion and signified non-instrumental labor. Thereby, although the prisoners engaged in futile labor, they knew that only death would set them free.

An acquaintance graduated from the top university of the country in June 2019, only to find out that they could not be awarded the degree since they had completed the course and degree requirements in 7 out of 8 semesters. While world-renowned institutions like Princeton, encourage the practice, it was not the same here. They were not only refused graduation but forced to sign up for an additional course which was beyond the scope of their degree requirements. Having complied, when they finally applied for graduation again, in Feb-2020, they were informed that they had graduated since June 2019, and thus were required to cancel the additional course they had taken.

Well, this does sound synonymous with non-instrumental labor. The problem with our institutions is not so much an absence of rules but rather the unnecessary discretion allowed therein. Anjum Altaf wrote an excellent piece on January 5, Rules and Discretion, where he said, ” Pakistan is very deep in a crisis of governance because of the blatant and unchallenged misuse of discretion…On balance, we would be better off sticking to some set of rules without discretion.” However, despite the presence of HEC policy guidelines which clearly stipulate requirements in Article 1 and Article 23 and which favored the candidate to graduate with their peers, a mockery was made of the rules through the discretionary clause. The additional academic labor, not to mention the costs in time and money do point to a discretionary application that lacks the fundamental zeitgeist of humanism.

According to Douglas McGregor, ”discretion can only be interpreted as those decisions that are made with lawful authority rather than decisions made for illegal reasons. Therefore, lawful decisions operate under the constraints acceptable to others within the organization or profession.” John Kleinig from the John Jay College of Criminal Justice, USA considers deviation from the definition given by McGregor to not constitute discretion but rather a decision to engage in forbidden conduct. Therefore, decisions made by officers without good faith are not classified as discretionary. According to SC decision in Criminal Appeals No. 210 and 211 of 2015, The State Vs. Mumtaz Qadri, ” a police officer acting in a matter by taking the law in his own hands may be termed as the worst manifestation of bad faith”. Section 52, PPC defines “Good faith” and clarifies that “Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention”.

Rawls in his seminal theory on Justice, observes that” the principle of efficiency can not alone serve as a conception of justice.” This mandates that the use of discretion must apply utilitarian counter-balance as there must be no abuse to the due process of law in which the rights of individuals are superseded. Thus, policies must make clear to officers the protocols, roles, operational procedures and responsibilities they are allowed to undertake. Due process is by definition the resolution of legal matters according to fairly established rules and principles. The US constitution guarantees the application of due process as per the Fifth and Fourteenth Amendments. The scope of the Due Process Clause includes not only a procedural due process but the substantive due process, protection from vaguely written laws and incorporation of the Bill of Rights. Therefore, the legislative and executive branches in the US have to be cautious in drafting and executing the laws.

The 18th Amendment provided for the same in Pakistan, where Article 10 A ‘entitles to a fair trial and due process.’ The elements of the due process include notification of charges, equal opportunity of hearing and impartial cross-examination (NLR 1984, SCJ 403). According to Cornell Law School, the decision has to have a basis or i.e it should detail the legal basis of the verdict. According to Adams v. Tanner, 244 U.S. 590, the Due Process Clause forbids a State to prohibit a business that is ‘useful’ and not ‘inherently immoral or dangerous to public welfare.’ The modern approach is exemplified by the 1955 decision, Williamson v. Lee Optical Co., “The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. . . . We emphasize again what Chief Justice Waite said in Munn v. Illinois, 94 U.S. 113, 134, ‘For protection against abuses by legislatures the people must resort to the polls, not to the courts.’

The practices from a functional democracy provide us with key insight into how a regulatory framework should work. Firstly, the minimization of discretion and ensuring due process of law lends strength and predictability to institutions. Secondly, laws must not be restrictive of practices that are lawful and not dangerous to public welfare. Thirdly, legislation is the prerogative of parliament and must build upon existing laws as authorized by the constitution. Lastly, interpretation of laws is the job of the superior courts and must be done under a logical rationale of presumed validity.

The writer has a degree in International Relations and Sociology. He studies M.Phil at Quaid-e-Azam University and has an interest in Law, Sociology and Criminology.