Malik M. Ashraf
In regard to the dispensation of justice, there is a proverb “Justice is Blind.” This expression means that justice is impartial and objective. There is an allusion here to the Greek statue for justice, wearing a blindfold so as not to treat friends differently from strangers, or rich people better than the poor ones. It also alludes to the prevalence of the rule of law in a country. This proverb is usually used when talking about a legal court and refers to the way judges, juries and law enforcement entities are supposed to fairly make decisions based only on the information presented to them and in conformity with the law pertaining to the nature of the case being adjudicated rather than based on personal experiences and likes and dislikes.
Islam, as well as all schools of jurisprudence, lay great emphasis on justice as it forms the basis of the strong edifice of the state. According to Aristotle, it is justice that creates the state, gives it a vision and when combined with ethics propels the state to the pinnacle of all ethical values. A country and a society where the rule of law is followed within the precincts of its definition becomes a vibrant entity due to the fairness and equity that it entails. It promotes equal economic, educational and workplace opportunities besides ensuring the safety and security of individuals and communities. In a nutshell, justice is a catalyst for peace and progress of society and the state.
In the modern era, almost all countries have written constitutions that spell out the fundamental rights of the citizens, define the structure of the state and the institutions essential to run the state, and relations between the state institutions and their powers based on the principle of trichotomy of powers. Among the state institutions, Judiciary is the most sanctimonious entity which is regarded as the custodian of the constitution and protector of the fundamental rights of the citizens.
The decisions and verdicts given by the judiciary have a profound impact on all aspects of national life. The decisions given in conformity with law and constitution accelerate the process of social and economic development besides building a harmonious and peaceful society whereas the verdicts pronounced in contravention of the constitution and law of the land and based on personal biases and dislikes create instability and anarchy. That explains why some countries have attained astronomical heights in regards to social and economic progress boasting perennial peace and some are struggling to find a way to wriggle out of the self-inflicted woes and tragedies. Pakistan unfortunately belongs to this category. No doubt that military dictators and politicians have played an unenviable role in where the country stands now but some judicial decisions are mainly responsible for our catastrophic journey during the last seventy-five years. They have been the cause of perennial political instability in the country with severe implications for socio-economic development.
I would not like to go into the details of all the judicial decisions in this regard and restrict myself to only a few of them. The doctrine of necessity invented by Justice Muneer laid the foundation for the validation of unconstitutional rules in the country and all the military dictators benefited from this invention. The courts using this doctrine not only validated military coups but also authorized the dictators to amend the constitution which itself was not empowered to do. The judiciary has been playing a role in the regime change due to the connivance of some judges being part of the conspiracies orchestrated by the establishment. The execution of Zulfiqar Ali Bhutto and removal from power and the conviction of Nawaz Sharif in the Panama case are black chapters of judicial history in Pakistan. Judicial activism initiated by former CJ Iftikhar Muhammad Chaudhry and also exercised by his predecessors have also immensely contributed to and aggravated the situation.
There seems no end to it. The current political crisis which has had a debilitating impact on the economy is also a sequel to the judicial indiscretions in disregard to the constitution and law. The opinion rendered by the SC on Article 63-A which is tantamount to re-writing the constitution and the verdict given in regard to the date of the election in Punjab and the relevant schedule for it in contravention of the Election Act 2017 and Article 254 of the constitution have undoubtedly precipitated the crisis and even brought the parliament and judiciary in confrontation with each other which is fraught with dire consequence for the country.
Equally damaging is the SC verdict to nullify the IHC decision regarding legal legitimacy concerning the arrest of Imran Khan as well as the verdict of the latter to grant blanket bail to him in the existing as well as any future case that might be initiated against him. It is really very perplexing both for the legal experts and the people with common sense. Honestly speaking I was flabbergasted and felt distraught when CJ Atta Bandial expressed joy to see Imran Khan and wished him good luck during his appearance in the court on its orders while he was in the custody of NAB in a corruption case involving billions of rupees. It was justice with love. It was Justice contrary to the maxim of justice being blind. It had eyes, ears and passions. The conduct of the CJ can be better understood in light of audio leaks involving his family members and the reservations of the opposition parties regarding his partiality. It is reported that one of the judges who granted IHC who accorded blanket bail to Imran Khan was the son-in-law of PTI leader Pervez Khattak and the other was a former President of the women lawyers wing of PTI and also the wife of a PTI ticket holder. According to internationally recognized principles of jurisprudence they should not have sat in judgment over the case.
Legal and constitutional experts rightly feel that the judiciary by giving the aforementioned verdicts has not only added to the gravity of the situation but has also lowered its prestige and reputation in the eyes of the people. I tend to agree with the remark of a friend who said that our judges are not angels. They are part of the society at the lowest ebb of morality infested with all pervading corruption. How can they be different from the general social milieu and psyche?
