Strictures as justice

Source: Published in Justice on Tuesday, March 25, 2014

OUR transformation from a predatory state to a predatory society is complete. We have reconciled with the reality that there’s no middle way: you are either a predator or prey; and better former than the latter. The predators are the elite clubs. Mandatory qualities for entry into these clubs are not excellence, integrity or perseverance, but pedigree, unconditional submission to authority and unequivocal commitment to not ruffle feathers and play by established rules.

This generalisation is not meant to undermine efforts of the few exceptions that have gatecrashed elite clubs. But by and large the straitjacket fits. Within a club, hierarchy, docility and sycophancy is key. If you play by these rules, you keep rising within the ranks and stay protected against competing clubs and commoners. You try and change club rules on the grounds of principle or question the lack of integrity by fellow members and you are an instant pariah.

To state the obvious, we are talking about the political elite, the military, the judiciary and the bureaucracy that forge the vital link between state and society. There might be a tug of war between competing clubs as an institutional matter. But in dealing with personal interests of elites within elite clubs, even a competing club is expected to exhibit ‘regard’. Sounds cynical? How many politicians, judges or generals have been treated like outcasts by our state or society?

If you’re an aspiring or junior member of an elite club the advice of old hands is to fit in and not stand out, to project an image of mediocrity and not distinction, to appear flexible in application of rules and principles and not rigidly incorruptible. This is meant to be earnest advice in view of the moral compass of our society. And if you think flattery pays dividends in family-led political parties alone, wait till you see it being practised in the form of buffoonery by aspiring judges and generals.

While elite clubs appreciate the application of a different code to their members and have the resolve not to allow their sense of entitlement and preferential treatment to be diluted by lofty principles such as equality and fairness, they also recognise that the apartheid between elites and commoners is inherently wrong and can’t be publicly acknowledged. In an attempt to reconcile this contradiction, what has emerged is a new model of justice, accountability and discharge of responsibility through the passage of strictures alone.

Look at the military’s institutional response post the OBL imbroglio. There was admission of intelligence and security failure by the DG ISI. He offered his resignation to the army chief and parliament, which was rejected. The general censure was deemed accountability enough. The abominable Arsalan Iftikhar-Malik Riaz scandal that inflicted serious harm on the integrity of the apex court and the office of the chief justice was brushed aside, not by the former chief justice alone, but by the judiciary as an institution.

Amina burnt herself to death not when she was raped by humans, but when she realised she was going to be raped all over again by our criminal justice system. The Punjab chief minister showed up, bent the ears of police officers in public, ordered a couple to be handcuffed, threw some money at the victim’s family and moved on. This cathartic model, focused not on remedying entrenched societal and institutional ailments but on dousing public rage, is inherently flawed for it presents passage of strictures as justice and accountability.

Mastered by former chief justice Iftikhar Chaudhry, the strictures-as-justice business has caught on. The present chief justice has also grown fond of suo motus. But to what end? In 2005 the SC took suo motu notice of the Mukhtaran Mai case. The alleged rapists remained locked up and no inferior court would accept their bail. Six years later the SC declared all, except one, innocent. While strictures abound, there is no noteworthy effort to kick-start institutional reform or even a solemn recognition of such need.

Another manifestation of strictures-as-justice is an unprecedented review matter decided by the SC wherein a sitting high court judge sought expungement of the SC’s observation that the judge had granted bail in a manner that was a “colourable” exercise of authority. In rejecting the review the apex court further clarified that the judge was censured not because he applied the law incorrectly but because he exercised his powers on the basis of extraneous considerations i.e. not on merits of the case but to accommodate a lawyer.

Who can fault the court’s emphasis on the principle of consistency in deciding cases or need for unimpeachable judicial integrity? But here the apex court has applied these principles in a manner that has further undermined public faith in judicial probity. The definitive SC verdict has blemished the reputation of the high court judge without affording him due process in Article 209 proceedings. The consequence is that despite his integrity blemished by the SC itself, the judge has been left alone to distribute life and death amongst people while hearing murder references.

Strictures-as-justice won’t work for long. What we need is comprehensive institutional reform. But that won’t happen till our elite clubs decide to change the way they do business. If they don’t, change for angry commoners will mean replacement of the system and not its reform. That opportunity will be ceased by a new category of bigoted and vicious predators already knocking at the gates.

Author Information

Written by Babar Sattar

Author Information: The writer is a lawyer.

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