Diminished justice
Basil Nabi Malik | Opinion | From the Newspaper
24th Jan 2012

Justice denied anywhere diminishes justice everywhere.
— Martin Luther King, Jr.

THE independence of the judiciary is an emotional topic for most lawyers in Pakistan.

It was after a torturous movement that the lawyers of Pakistan, with the support of the public and the media, proclaimed the dawn of an independent judiciary free from influence, intrigue, and bias.

However, four years on, the same lawyers who championed the cause of an independent judiciary appear disillusioned and demoralised.

One of the factors which rallied the lawyers and masses in favour of the movement was an opportunity to reinvent the judicial system of Pakistan.

Whether it be the lamentable legitimisation of army rule via the concept of revolutionary legality or the doctrine of necessity, the ‘judicial murder’ of Zulfikar Ali Bhutto, or the happy-go-lucky application of Article 58(2)(b) of the constitution, the actions of the judiciary had always been less than praiseworthy.

However, with a single ‘no’, Chief Justice Iftikhar Chaudhry galvanised the lawyers into a movement for an independent judiciary. This sentiment was echoed and acknowledged by the chief justice himself in his speech at the Harvard Law School where he said, “300 years thence, Pakistani lawyers are now struggling to keep their autocrats, military as well as democratic, from influencing judges. The campaign under way is truly, truly unique”.

However, after four odd years, it appears that the lawyers may not have achieved their objectives after all. Although the country now boasts of an empowered and emboldened judicial apparatus, the same is perceived to have pointed its guns selectively towards one category of alleged offenders without censuring others.

The said perception is fuelled by certain actions taken by the Supreme Court. For example, the speed with which the superior judiciary thought it fit to proceed with the memogate petition against the present civilian government, whilst at the same time going slow in relation to the petition filed against the DG ISI chief for his alleged plan to topple the present government, exemplifies a perceived atmosphere of selective justice.

Furthermore, the lack of progress or concern for the missing persons case, the hue and cry created in relation to the extensions within the civilian bureaucracy whilst remaining silent on the extensions given to the army chief and the ISI chief, and the attempts to pre-empt any contemplated sacking of the army chief and DG ISI by the federal government all add to the chants of selective justice.

Even more alarming is the fact that fundamental rights too appear to be a victim of this perceived selective nature of justice. A case in point would be that of Abdul Saboor who died mysteriously a few days ago in the custody of the intelligence agencies whilst facing court martial under the Army Act on charges of attacking the GHQ and ISI Hamza camp.

Abdul Saboor was the fourth civilian detained in the case to have died in mysterious circumstances over the past six months.

However, what is more shocking is that a petition challenging the legality of the proposed trial under the Army Act and the apprehended torture and maltreatment of the three detainees, one of which was Abdul Saboor, was pending before the Supreme Court since Jan 6, 2012.

In this petition, the ailing mother made an emotional appeal to the Supreme Court to order intelligence agencies to immediately kill her sons and hand over their bodies to her if superior courts could not provide relief to common citizens of the country.

This apparently did not move the Supreme Court, who according to advocate Tariq Asad, the counsel for the petitioner, was dealing with matters “more important than the life of a citizen”.

Other examples of fundamental rights being sidelined in favour of other concerns include the lack of attention of the Supreme Court towards the atrocious violation of human rights being committed in Balochistan by the security forces.

The Human Rights Commission of Pakistan has issued multiple reports highlighting the acts of torture, forced disappearances and brutal executions being undertaken in the name of national security; however, the superior judiciary is yet to take serious notice of the same.

Also, in addition to the above, let us not forget the lack of focus on the fundamental rights of the residents of Swat, who are reported to be complaining of innocent bystanders being randomly and arbitrarily picked up for suspected links to terrorists by intelligence agencies and security officers without recourse to any law.

The above mentioned clearly epitomise the sorry state of affairs prevalent today. The chief justice is on record as having affirmed the resolve of the superior judiciary to dispense impartial justice and protect at all costs the fundamental rights of Pakistanis.

However, and unfortunately, the death of Mr Saboor and various others under the watchful eye of the Supreme Court, its silence in relation thereto, and the other perceived acts of selective justice, can be seen as signalling the death knell of the dream that we all once shared; the dream of an independent judiciary which would protect us from the excesses of the coercive arm of the state, whether in the garb of civilian authority or the military.

The writer is a Karachi-based lawyer and a Fulbright Scholar.

basil.nabi@gmail.com