Laws May Be Imperfect, But That Should Not Prevent Judges From Ensuring Justice
In light of the recent debate about there being two systems of justice following the court’s decision to allow Nawaz Sharif to go abroad, Abdul Quyyum Khan Kundi differentiates between law and justice, how law is subject to imperfections, and how justice at the end of the day rests on the shoulders of the judge.
Once again there is a debate in the country about law and justice, which ignited when the courts granted former prime minister Nawaz Sharif a time-bound bail to travel abroad for treatment along with suspending his jail sentence.
This put Imran Khan’s government in a bind as their political narrative was to hold the opposition accountable for corruption at all costs. Following the court order, the government blamed Nawaz’s departure on the courts and tried to bring forth a narrative that there were two systems of justice. The prime minister suggested in a speech that rich criminals got away from prosecution while the poor were punished by courts.
Meanwhile, the chief justice of Pakistan responded by denying the perception that any favouritism or coercion dictated the verdict. Chief Justice Asif Khosa held that the courts were independent since 2009. This brings us to the question of what law and justice is.
Pakistani judges have commented on many occasions that we have courts of law rather than justice. This was also mentioned in the recent high-profile case pertaining to the Sahiwal incident where innocent people lost their lives at the hands of state organs, who were allowed to go free due to ‘lack of evidence’, as well as following the granting of bail to Nawaz Sharif.
In a way, judges suggested that the courts were bound to impart a verdict based on the law at hand and the evidence produced by both the prosecution and defense counsel. If we accept this to be a valid argument, then where are the courts of justice? Because the law in itself is not the end rather it is the means to achieve an end.
Law is a human enterprise that contains all the contaminations, biases, and distortions that are an integral part of the imperfect human nature. Limitations of language are one such distortion, which results in multiple interpretations of a statute of law. But there is also a positive element to this. There is no law that is so rigid that it impedes the application of human cognition, rationality, and ingenuity. If these are not needed, a computer powered by artificial intelligence can impart verdicts without ever requiring a human judge. It is for this reason a human being is appointed as a judge, which helps convert a court of law into a court of justice.
Law has two components. One is the procedure that provides a level playing field to the litigant and defense attorneys in terms of presenting witnesses, access to information and the time-frame under which everyone should operate. The second part is the penal code that guides the penalty for a particular crime. For instance, the penal code says that for a premeditated murder, the penalty could be a death sentence or life imprisonment, leaving it to the discretion of the judges.
When we combine these two elements – the imperfection of laws and their dependence on human interpretation – then justice rests on the shoulders of the judge. The judge can use the flexibility offered by imperfection to his advantage by using his intuition and experience to ensure that timely justice is imparted. A badly written law will make it difficult for a judge to impart justice, but it will not prevent him from ensuring it.
Every judge has enough authority vested in them to apply the law fairly and equitably. But it does require a certain strength in character and courage. A good judge is aware that the party which disagrees with the verdict will be applying pressure to discredit him or the order. Judges can deal with this pressure if they have an assurance that the society will ensure the implementation of a judgment regardless of how much disagreement exists against it. A society can survive with bad laws, but it cannot survive for long with bad judges or the inability to implement their verdicts.
In Pakistan, we have a quadruple issue consisting of bad laws, a weak judiciary, a non-functioning legislature, and an incapable executive. It is for this reason they all play ping pong with each other rather than shouldering their burdens. Imran Khan’s government, at every juncture, is willing to throw the ball to the courts or some other entity so that decisions are made for them and they don’t have to deal with tough political situations themselves.
The chief justice rightly responded to the uncalled-for blame from the executive office that courts were influenced. Throughout his tenure, the chief justice has focused on improving the performance of the courts and improving their delivery. We all must appreciate him for that. But it is still difficult to say that the courts are functioning as an institution of justice. They are still not fully independent in their decisions.
Former chief justice Saqib Nisar has confessed that MI and ISI were included in the joint investigation team to spice up the inquiry. In the Mashal Khan, Naqeebullah Mehsud, Salahuddin, and Sahiwal incidents, victims and their families have all been deprived of justice. There is much work to be done and one can agree with the prime minister on the point that courts still have a trust deficit among the people.
Islam’s message is to establish a just society. It is the collective responsibility of the executive, legislative and the judiciary to deliver a just society without being influenced by fear or favour. It seems that this cannot be achieved in the current republic as there is too much inertia in the system. A much better approach is to build a second republic that delivers a just system and society.