VIEW: Justice? Did you say justice? — Sikander Amani - Sunday, February 20, 2011

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The disastrously low conviction rate, which oscillates between 5 and 10 percent, further alienates citizens from the justice system, and propels them into informal justice regimes, or traditional methods of conflict resolution — which are seldom known for their equality, justice or regularity

Pakistan is perhaps the only country on earth to take philosophy, and Aristotle in particular, seriously enough to have made it a state policy. In book V of his Nicomachean Ethics, Aristotle laments the generality of the law, which by its very essence cannot accommodate specific differences and the individual circumstances of a crime or of a delinquent. In his eyes, the universality of the law, its “one-size-fits-all” character, is an irremediable inconvenience (contrary to the modern perspective, which views the generality of the law as essentially the guarantee of its impartiality and justice). Now it seems Pakistan has decided to take the wise Greek’s words literally. In Pakistan, there is no such thing as a general rule or something resembling a uniform application of the law. As a matter of fact, Pakistan takes the Aristotelian view to such an extreme that criminal justice has become a joyful pick-as-you-choose buffet. Are you a foreigner? No problem, we can arrange a hasty diplomatic immunity status. Are you rich? Excellent, you can just buy your way out of the justice system. Are you a military would-be dictator? No worries, we will promptly set up a doctrine to validate your unconstitutional coup d’état, e.g. the doctrine of necessity. Are you religious? Very good, we will just argue to the judge that he might “offend religious sensibilities” by convicting you, and that you are exempt from all legal requirements anyway because you obeyed a superior law. Of course, if you are poor, ahem, not much we can do for you. You can expect to rot in jail, whether or not you have actually committed a crime, especially if you are a woman and/or come from a minority. But hey, in any other case, we can get you out pronto.

And Pakistan, this uber-Aristotelian country, has now become the land where the generality of the law is rapidly becoming a joke, and where the expression “case by case basis” is taken as a military, or a divine command. Asma Jahangir, president of the Supreme Court Bar Association (SCBA) and former head of the Human Rights Commission of Pakistan (HRCP), called a few days ago for an end to the “ad-hocism” prevalent in the Pakistani judiciary. Indeed, the haphazard and perpetually different manner in which courts across the country seem to be conducted makes a joke of the notion of the rule of law. The disastrously low conviction rate, which oscillates between 5 and 10 percent, further alienates citizens from the justice system, and propels them into informal justice regimes, or traditional methods of conflict resolution — which are seldom known for their equality, justice or regularity. And turning to traditional justice systems happens in the best of cases, so to speak. In the worst of cases, individuals do not hesitate to do justice themselves. In a way, the arrogant Mumtaz Qadri’s action is not just a signal of the immoral and dangerous interpretation of religion increasingly prevalent in the country; it is also a sign of how individuals now deem it normal and acceptable to take justice in their own hands, a quick fix that undermines state authority and worsens the growing sense of anarchy.

In a recent report, the International Crisis Group (ICG) draws a bleak picture of the criminal justice system in Pakistan: ineffectiveness of the judiciary, weakness of the rule of law, prevailing corruption at every step of the criminal investigation and prosecution, absence of scientific evidence collection, fairytale witnesses, systematic use of torture and coercion to extract confessions, poor training of police and of prosecutors, infinite adaptability of the jurisprudence to fit the judge’s needs. It is difficult to see how it could get any worse. The ICG specifically points to Ziaul Haq’s responsibility (the damage this man did to Pakistan is simply immeasurable): “Political and constitutional distortions are largely responsible for the breakdown of the rule of law. General Ziaul Haq’s Islamisation programme during the 1980s, in particular, fundamentally distorted the justice system, degrading legal standards and introducing religious, sectarian and gender biases. The violation of basic rights became a matter of state policy.” Discrimination, be it religious or gender-based, is widespread, and the introduction of religiously-inspired laws has reinforced this trend (dare we mention the blasphemy laws again?). In its report on the death penalty in Pakistan, the HRCP notes that the Qisas and Diyat Ordinance, which allows for the possibility to pay “blood money” to relatives of the victim in lieu of execution by the state, has in effect led to a very toxic privatisation of justice: the life of an individual hinges not on the norms of justice but on the persuasive powers of his relatives — the persuasiveness of which, needless to say, dramatically increases with their fortune. The HRCP notes that the possibility of compromise has de facto lowered the standards of evidence required for conviction. In addition, coercion appears to be routinely used to force the legal heirs to accept compromise. There is no transparent and objective procedure to ensure that the compromise is entered freely, willingly, and without intimidation. Although by law the state retains the possibility to punish the criminals even if the heirs have entered a compromise, de facto, it never does. So in Pakistan, blood money means immediate acquittal for all intents and purposes.

The state is slowly withdrawing from one of its essential prerogatives: the implementation of justice, and, in the words of the ICG, “Pakistan [has] moved farther and farther away from international standards of justice.” When justice becomes a private affair, as it is increasingly the case in Pakistan, it is the very notion of public good, and of a common state, which is on the brink of collapse.

The writer is a freelance columnist and can be reached at

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