Weak foundations and crumbling pillars


All societies have to deal with contradictions as it is part of human existence. But only those societies are able to grow and prosper that are able to develop a social contract that helps in containing and reducing the impact of these contradictions. Pakistan faced its first major contradiction emerging from two nation theory once independence was achieved. Quaid-e-Azam tried to help the constituent assembly overcome this contradiction through his 11th August 1947 speech but failed to achieve the objective. It is hard to cover all social contradictions faced by our nation in this one piece so I will limit myself to one of the most important ones which are injustice in our society. 

The Western liberal democratic model suggests that the state rests on three pillars that are legislative, executive and judiciary. It also proposes that judiciary has to be independent of the influence of legislative or executive in its functioning but not entirely independent in its decision making. Judiciary has to base all its decision on laws promulgated by the legislature. In other words, Judiciary mandate is to impose rule of law which means that they are a court of law rather than justice.

There is a substantial difference between a court of law and justice. A court of law has to adjudicate based on the laws that are adopted and cannot go above and beyond it. A court of justice from this perspective will not be bound by any particular law but will use the evidence and merits of a case to make a judgment based on the individual interpretation of the judge who will have recourse to any precedence in any jurisdiction. Let me try to elaborate this a little more. In a court of Justice, the judge will decide the procedure, the qualification of a credible evidence, and the extent of the penalties for each case. He can use any laws in existence to help him deal with the case. This means that the judge has extraordinary powers that are not constrained by any particular jurisdiction. This can give rise to many complexities in itself which were avoided by restraining the courts to follow the law of the land in which they were operating. 

I am not suggesting that a court of law is necessarily unjust but that its dependence on laws developed by a legislature can cause distortions and limitations that can result in injustice. The argument in favor of the court of law is that it provides a level playing field to both parties to present their case. It takes away subjective powers of a judge and bound him to follow certain procedures in arriving at a judgment.

“Opposition activists behind violence during TLP protest: Afridi”

This means that if the laws are badly written or that it has loopholes that can be exploited by an expensive lawyer then there will be injustice in the society. This is the situation we have right now in Pakistan. Oligarch, elites, generals, and even ambitious judges exploit loopholes in the law to award verdicts and issue judgments that are causing damage to the society. The other problem is the pressure on the judiciary to issue verdicts that are not based on the evidence and merits of the case. One recent example is the death penalty awarded to Asia Bibi by the lower courts but on appeal, the verdict was repealed by the Supreme Court. The irony is that the note written by Justice Asif Saeed Khosa remains silent on the abuse of Blasphemy law and recognizing the failure of multiple tiers of lower courts to follow the law in awarding a judgment. This discrepancy in the verdicts of lower and the higher court provided the basis for extreme right to organize violent protests. Supreme Court also conveniently allowed false accusers to remain unaccounted for their injustice to a citizen and did not instruct the State to prosecute them. Bottom line is that Pakistan courts are in dire need of major reforms. Due to current gaps and flaws in the justice system there is lack of confidence which lays the ground for mob rule and civil war.

The current government’s indecisiveness and inability to take action against the leaders who incited violence and arrest of low level foot soldiers, has shown weakness from one point of view and ability to adapt and stay calm despite political pressure from a different point of view. But in international media Pakistan will be seen as a country where bullies are protected while their supporters can be punished as a necessary sacrifice to protect the system from collapsing. Had the ruling government taken action against the violent protestors (many of whom were from opposition political parties and not from any religious parties), the opposition would have reprimanded and criticized the government. The international media would have lambasted PTI and its leader for using excessive force against protestors. The truth is that there is no pleasing anyone and the ruling government has to decide path it wants to take. Had the courts of law, taken the right steps in rectifying their systems, many protests and senseless acts of violence could have been avoided.

The justice system is failing not just because our judiciary is ineffective. It is failing because our constitution is full of contradictions. These contradictions have to be resolved if we want to realize the potential of the Pakistani nation. This will surely come to pass either through peaceful transformation if our politicians recognize their failings to fix the constitution or through a bloody revolution for which parties like TLP are preparing aggressively.

Adapted from Abdul Quayyum Khan Kundi’s opinion titled “Contradictions”