Balance and Equity

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By Humayun Gauhar

With so much to say and such little space to say it in, best to KISS – ‘Keep It Simple Stupid’.

I know how bad this government is, but I don’t want it to go because I see none better to replace it, none that can realistically win elections. Best to let the system proceed. It’s as simple as that. I hate the British Westminster parliamentary system but I reluctantly accept it because it has national consensus. Thus I don’t want it to be made to collapse because it could destroy our country. It’s as simple as that. Put simply, our ruling elite’s priorities are all wonky because it is so alienated: while the country dies they worry about a memo and a letter. It’s essentially a power struggle within the elite that the people have nothing to do with.

The irony is that the one whom the National Reconciliation Ordinance didn’t benefit could be the fall guy. While the Supreme Court called the prime minister “dishonest” he raised his stature by getting what amounted to a vote of confidence and by going to Supreme Court. He won this round, but the fight continues. No one knows where it will end.  

There are certain immutable cornerstones of justice.

Respect for the constitution in which divides power between three branches of government – parliament-legislature, executive and judiciary. It is a fine balance. Each must work in synchronicity, not conflict, by recognizing the limits of their domains. Independence has limits that end where the domains of others begin. Any transgression and balance is lost.

Balance and equity must always be seen to exist.

Justice must not only be done it must be seen to be done.

Impartiality. Justice cannot be selective. It must be blind.

Justice delayed is justice denied.

Justice must be egalitarian. None is above the law, least of all judges. The law must apply equally to all.

One cannot be a judge in one’s own cause.

The absence of any of these cornerstones means absence of justice.

To heal the wounds of our national psyche it is imperative that we remove all doubts by discovering the truth behind all allegations and suspicions.

Rescind the NRO, certainly, but balance and equity demand that everyone who got away under other devices must also be made answerable. Else justice will be selective.

Rescind the Saudi deal that pardoned the Sharifs and hear all the cases against them. Would anyone innocent accept a pardon? Anyone innocent would consider accepting a pardon an insult and insist on clearing his name.

Rescind the general pardon for Dr. A. Q. Khan and find out whether he really sold national secrets or not and who else was involved, if any. Would anyone innocent accept a pardon? Anyone innocent would consider it an insult and insist on clearing his name.

Being a judge in one’s own cause is inequitable and unbalanced. Thus equity and balance demand that parliament being the highest branch of government with the upper hand hears the charges leveled against the chief justice in the 2007 reference against him and not the Supreme Judicial Council since being judged by one’s peers is tantamount to judging in one’s own cause. It is most incumbent for judges to be seen to be without blemish, else how will people have confidence in their impartiality? The chief justice has always maintained that the charges against him were facetious, so he should have no compunction in proving it.

Parliament must determine whether the Executive Order restoring the sacked judges is in line with the constitution. The cute argument that they were never sacked is just so much sophistry and slight of semantics.

Justice delayed is justice denied. Air Marshal Asghar Khan’s case holding fire must be decided urgently. None of his letters to various chief justices was answered. The registrar refused to receive his hand-delivered letter. Where’s impartiality?

Equity and balance means that something cannot be legal at one time or in one set of circumstances and illegal at another time and another set of circumstances. What is wrong is wrong and what is right is right. Thus Provisional Constitutional Orders caused by deviations from the constitution can either be legal or illegal, not both. Changing times and circumstances have nothing to do with it. The doubt in many minds is: was the PCO of 2000 made legal because it enabled a certain set of judges to remain in office and the 2007 PCO made illegal because some of the same judges lost their jobs because of it and another set benefitted? Is this balanced and equitable? Is it just? The ‘upholding a principle’ argument becomes flippant and inane when applied when convenient and not when inconvenient. Now wait for them to say: one learns!

The Charter of Democracy is an unusual document untypical of Pakistan’s warring politicians. Not adhering to it is typical. As the COD requires, no judge who has ever supported any deviation from the constitution and taken oath under any PCO should ever again hold the office of judge at any level again.

Only when all these cornerstones are met and all doubts and suspicions removed will the judiciary be seen to be impartial and pristine. If you don’t have it in you to do all this, forget everything and declare them ‘past and closed transactions’ which the judiciary has been known to do.

The question is: since the prime minister has taken oath under the constitution to uphold the constitution, how can he write a letter to the Swiss authorities to reopen the cases against the president when the constitution gives him immunity? Wouldn’t that be tantamount to violating his oath? Can Supreme Court judges who have also taken oaths under the constitution and are also sworn to uphold it insist that the prime minister causes such a letter to be written? Isn’t that tantamount to insisting that he violates the constitution? Isn’t such insistence itself a violation of the constitution? All this kafuffle considering the concept of immunity doesn’t exist in Islam. Aren’t we supposed to be an ‘Islamic Republic’? And to say that immunity didn’t apply to Musharraf because he was an ‘illegal’ president while it does to Zardari because he is ‘legal’ is to forget that the Supreme Court that included the current chief justice legitimized Musharraf’s takeover and took and gave oaths under the PCO of 2000. When you try to be too cute you look clownish.

The concept of self-notice or suo moto becomes questionable when undertaken at will without a process to decide where self-notice is justified and where not. Is it impartial, equitable, balanced and just that while hundreds of lawyers who are officers of the court contemn the judiciary by showering flower petals on a self-confessed murderer are ignored, the Supreme Court finds time to take self-notice of Atiqa Odho’s bottles while the hunger and incremental degradation of teeming millions goes unnoticed? Surely it couldn’t possibly be because she is beautiful, could it? Could it be because she is in General Musharraf’s party and he is the real target?Kidhar hain nigahain, kidhar hai nishana – ‘Where is the target, where the aim’.

Oh! Before I forget, do read the article ‘Absolut Justice’ by Amir Zia in the January 2012 edition of Newsline: www.newslinemagazine.com. Drunks should raise a toast to it, especially in the legal fraternity. 

Courtesy: Opinion Maker

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