Schrödinger’s justice

THE last thing we expose a child to is injustice. It is taught even after satire. It is after all the irony is comprehended that we begin to teach our child the injustices that define real life.

CJP Umar Ata Bandial, while hearing former PTI minister Faisal Vawda’s appeal against his disqualification, with the possibility of the ECP disqualifying Imran Khan looming in the background, opined that lifetime disqualification resulting from not meeting the standards — of righteousness, sagacity and honesty — set by Article 62(1)(f) is a draconian law.

The penalty’s duration is not part of the constitutional article, but was read into its meaning by a Supreme Court bench when some politicians, including Nawaz Sharif, faced Article 62(1)(f) in 2018. That judgement’s author was Justice Bandial.

In a judgement laced with religious references, Justice Bandial spoke of the sacred nature of the trust reposed in public office. He felt that the Constitution allowed restrictions upon political parties where there was a threat to Pakistan’s sovereignty or integrity, and that this allowance included the policing of such parties on grounds of morality, as it was a component of the integrity of Pakistan, the latter being an Islamic state.

It was observed: “The judicial mechanism in Article 62(1)(f) … grants a fair opportunity and adequate remedy for relief to a candidate under challenge to vindicate himself. Therefore, the permanent incapacity of a candidate for election under Article 62(1)(f) … is not an arbitrary, excessive or unreasonable curtailment of his fundamental right under Article 17(2)… .”

On the other side of the capital, the Islamabad High Court, before a larger bench led by its chief justice, has forgiven Imran Khan for something the SC didn’t forgive Daniyal Aziz, Nihaal Hashmi or Talal Chaudhry.

Many will argue that contempt is subjective and between the contemnor and the court, hence the SC decisions were not binding on the IHC. But there were some criteria for an apology in cases of contempt set by the SC which the IHC also appears to have disregarded: an apology must be unconditional once the court decides to look into an incident of contempt, and offered at the earliest; the contemnor must show remorse, mustn’t apologise to evade consequences, and mustn’t seek to justify his conduct. Khan’s offering violated all. These are SC pronouncements and binding on the IHC, whether or not the latter agrees with them.

Some years earlier, Justice Athar Minallah had, apparently begrudgingly, followed an SC judgement and disqualified Khawaja Asif for not meeting the standards of ‘sadaqat’ and ‘amanat’ set by it. Having already disqualified Nawaz Sharif, the SC appeared to reverse its own standards in Khawaja Asif’s appeal, and was seen to conveniently allow the law to revert to the line that only material and deliberate misdeclarations would attract disqualification.

The sword of justice is only that if it falls with equal force upon all.

In theory, the sword of justice must slice clean through the mightiest oak just as it would a blade of grass. When the SC felled the Nawaz Sharif oak for an illegally withheld, unwithdrawn receivable, we entered an era where there was only the rule of law — until Khan was taken to court.

Amnesty declarations of property, unexplained money trails and an ever-increasing wealth portfolio despite no increase in income tax payments were put before the same court but the sword did not swing. When it did fall, it was on Jahangir Tareen, who paid for the sins of his party’s founder.

In taking Khan’s case to court, Hanif Abbasi may have hoped to extract a judicial and public price. The price to be paid by justice was supposed to be the head of the establishment’s chosen one. But the court decided to change the rules.

We often see powerful people change rules to their liking. Trouble is, one of the rules was the rule of law. Khan’s being let off marked a point where the theory of law no longer complemented its practice in Pakistan.

To be applied in the real world, economics must be seen through the prism of its interaction with politics and society. This is the opposite of what the law is supposed to be. The theory of law, the spirit of fairness and equality before it, must also largely correspond with the application of the law. It is what makes the rule of law. The sword of justice is only that if it falls with equal force upon all. Else, it is as good as a farmer’s scythe, or Shahid Afridi’s bat.

Post-Saqib Nisar, we find ourselves in a realm where judicial pronouncements can no longer be explained fully unless one begins to look at them through their connection with political and social prisms.

In 2018, after Nawaz Sharif’s disqualification, the hybrid system needed money. Billions were stuck in court actions through stay orders. Suddenly, all these actions were taken to expedite decisions in all superior courts. Thereafter, any new challenge to fiscal policy matters was no longer treated with the same judicial benevolence.

Until around 2015, bail in NAB cases was a routine affair in all high courts. But when the then army chief Raheel Sharif started Operation Clean-Up in Sindh, the state went after Asim Hussain and Sharjil Memon as well as PPP supporters within the bureaucracy. High court benches handling NAB cases changed. Suddenly, jurisprudence evolved to render NAB bails scarce. Everyone had to languish in jail, on mere claims of corruption that were sometimes accurate, sometimes farcical but always unsubstantiated during trial.

In 2019, Waqar Seth decided that internment centres in KP were illegal. The SC suspended this judgement. Missing persons have continued to be a macabre exhibition of the establishment’s real-life version of Schrödinger’s cat, where the family of the missing are left to wonder whether their loved ones are dead or alive, until civilians get a court to open the box. Until we figure out how best to settle these past few judicial years, would it not be best to top off a Pakistani law student’s education by teaching them injustice?

Or perhaps it can all be explained in the words of CJP Bandial, who was presented with his vote in an earlier case where the substantial role of a party leader in political parties led to Nawaz Sharif being removed as PML-N chief.

When faced with Chaudhry Parvez Elahi challenging Chaudhry Shujaat claiming similar primacy in the Punjab CM’s election affair, the opposite view was expressed: “If a judge has unconsciously followed an incorrect view of the law, he has by conscious application of mind the freedom to adopt the correct view of the law.”

Or we could just remove the sword from Lady Justice’s hand in our legal signage and replace it with Afridi’s bat.

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