Law of the jungle - Dr A Q Khan - Monday, March 19, 2012

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The March 7 issue of Jang carried a statement on the front page attributed to Chief Justice Qazi Faiz Isa of the Balochistan High Court. He is reported to have said that the courts have no guns and so they are unable to see their decisions implemented. I fail to understand the logic that the message was trying to convey. He seems to imply that the courts have failed to command sufficient awe and respect to be able to get decisions implemented.

Are we to expect a similar statement from teachers soon, that since they don’t have guns, they can’t control students and teach them to become good, law-abiding citizens? Parents could use the same logic about the proper upbringing of their children and doctors could take refuge behind it for not providing the necessary treatment because they can’t control patients. The situation becomes even more worrisome when social law-enforcing agencies start using this logic as an excuse to abdicate from their duties.

Then what are we supposed to do? Forget about maintaining public order and peace and harmony in society? Certainly not! We should rather try to understand what has gone wrong with our ethics that has produced a society that brings forth such a pessimistic pronouncement from someone holding the most elevated position of chief justice of a province.

Did His Lordship and his honourable colleagues have any doubts about the intentions of these powerful criminals? How much time was allowed to pass without any action being undertaken against those already proven guilty and who constantly defied the courts? How many instances of open mockery of court decisions were simply ignored or overlooked by the judiciary? How many instances of clear and open contempt of court were left unnoticed? How many cases of corruption, violation of the constitution and public law were finally and conclusively decided?

Were His Lordship and his honourable colleagues to reflect and ponder these issues and make an honest self-appraisal, they would reach an inescapable conclusion: they have none but themselves to blame for the current hopeless situation. It is most unfortunate that their lack of resolution has brought down their prestige to the present level where they find themselves helpless.

Surely, with the huge public support (including lawyers) behind them in the historic movement for the restoration of judges and the independence and prestige of the judiciary, they should have understood the obvious fact that public expectations were in proportion to the degree of support and sacrifice offered by them.

People also expected their lordships to show courage and perseverance to face all those forces which stood in the way of their freedom, dignity, honour, property and security. However, it seems that their lordships failed to register the loud and clear message offered by history. They were afforded a golden chance to remove from judicial history all traces of past ignominy left behind by Justice Munir, Justice Anwarul Haq and Justice Irshad Hasan Khan.

The present judicial decisions that unnecessarily delay or postpone the dispensing of cases reminds me of the words of former Chief Justice Dr Nasim Hasan Shah. He once said in a TV interview that judges were also human beings with families and they were always under tremendous pressure (and threats) to “listen” to any accused who was powerful. It seems that their lordships are inhibited by some such fears (if one may say so) and fear impedes even the most able and powerful.

One fear may be of undergoing the same travails of 2007. Another, which seems the real impediment to action, is that convicts will never acknowledge the judges’ fairness and impartiality. Thieves, dacoits, murderers and the corrupt never acknowledge any violation, do they? It seems that we have ended up in a vicious circle with criminals getting the better deal.

The importance of establishing justice has been elaborately mentioned in numerous verses of the Holy Quran and sayings of our Holy Prophet (SAW). The second Caliph, Hazrat Umar (RA), wrote an important and comprehensive letter to Hazrat Abu Musa Ashari, the governor of Kufa, on guidelines to the conduct of the judiciary. In this he wrote:

1) Adjudication of disputes is a well-established duty of the Islamic state. It is a practice that has been constantly followed by all earlier prophets and their followers.

2) A thorough understanding of the facts and the relevant provisions of Divine Law is essential for performing the solemn and supreme duty of the state.

3) If a Qazi (judge) makes a mistake in his judgement, he must return to the truth immediately because reverting to the truth is far better than perpetuating a wrong.

4) A judge must give a patient hearing to all parties and must maintain impartiality amongst different parties in a dispute brought before him. He should treat them equally and should not show any preferential treatment to anyone on account of his/her wealth, office or influence.

Our young, able lawyer, Baber Satter, wrote an excellent article in The News in two parts on March 3 and 7 under the title “Criminalising justice.” The most horrifying disclosure was that, merely under suspicion of intent (who will determine true intent – the police, the intelligence agencies or Allah Almighty?) of committing some crime, a person can be convicted to life imprisonment or even death. Alas, our judiciary has allowed such inhuman laws to be incorporated and the honourable Ulema of the Council of Islamic Ideology are quiet about it, most likely enjoying their perks and not taking any stand against such inhuman, arbitrary, draconian, anti-Islamic laws.

Regarding the sanctity and importance of the office of the Qazi (judge), there is a Hadees-e-Nabvi which says: “He who has been given the responsibility of a Qazi has been slaughtered without a dagger.”

In conclusion I would like to quote a very relevant verse from the Holy Quran (3:188): “Think not that those who exult in their misdeeds and love to be praised for what indeed they have not done, do not (even) think that they are secure from chastisement. A painful chastisement awaits them.”

At some time in the future I will deliberate on the virtues of the old Qazi system versus the vices of the modern judicial system.


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