Dr. A Q Khan
Mohsin e Pakistan

Judiciary, justice and the public

Posted in English Articles  by draqkadmin
March 31st, 2010

Random thoughts
By Dr A Q Khan

Justice (insaaf) is the definition of honest, correct decisions on quarrels, any difference between two parties or a breach of law. The final dispenser of justice, or adl, is Allah Almighty. He is the Real Munsif and His justice will culminate on the Day of Judgement. However, bickering humanity needs it now and complains about its delay.

That justice is a divine inspiration is evident and its violation is a serious crime inviting Allah’s chastisement. Problems involving quarrels and differences for which justice is sought have always been there and all civilisations have evolved methods of settling disputes. In the olden days on the subcontinent, a few respected elders were chosen to mediate. They were known as “Panj” or “Parmeshva” because everyone believed in their honesty and neutrality. Their decision was neutral and binding on both parties. If either party refused to accept the decision, they were boycotted by the community. The famous writer Munshi Prem Chand wrote a story 75 years ago entitled “Panj Parmeshwar.” In it he described them as divine souls, and the story became very popular.

In our tribal areas a similar tradition has been in vogue for centuries and is known as “jirga.” Its effectiveness and utility prompted the British to devise and promulgate the Village Panchayat Act, making the decision of the Panchayat mandatory. When the kings and rajas started ruling, a noted scholar was usually appointed as the dispenser of justice. Maharaja Vikra Madattya, who ruled 300 years ago and had his capital at Ujjain, was regarded as an exemplary, honest ruler. Nausherwan-e-Adil of Iran had a similar reputation.

During Muslim rule, qazis (judges passing judgement according to Shariah) were appointed. They commanded such respect that they could call caliphs and rulers to court if there were any complaints against them.

The justice meted out during the periods of Hazrat Umar (RA) and Hazrat Umar bin Abdul Aziz (RA) was exemplary and of such fame that their reigns were known as golden chapters in Islamic history. In Islam the sanctity of justice can be judged from the fact that a poor, old, arrogant adulterer, a mushrik (someone who associates other deities with Allah) and a murderer of innocent Muslims are the most hated persons and will go to hell. A judge not dispensing justice honestly will, according to our Holy Prophet (PBUH), also dwell in hell for ever.

Justice is a decision based on honesty and facts given on a dispute between two or more parties. The problem is that the person/party receiving the negative decision is not pleased. In modern law procedures, the aggrieved party can appeal in two or three higher courts. Since rulers and their cronies are unwilling to abide by any decision that goes against them, they have always tried to have a subservient judiciary. This results in the appointment of judges favoured by them or the blackmailing, pressurising, etc., of judges.

In the olden days, some caliphs, kings and sultans had qazis whipped for not giving them a favourable judgement. The goal is the same today, only the methods differ. Many means of forcing judges to oblige have been applied. The most recent and striking example was the case of Gen Musharraf trying to bully Chief Justice Iftikhar Chaudhry into submission. In India, Indira Gandhi had appointed Justice Chajed as chief justice, superseding four senior judges. Those four judges resigned en bloc but Indira got her way. She later greatly benefited when Justice Chajed came to her rescue and overruled Sinha’s judgement. In our country, for their illegal and unconstitutional acts, Gen Ziaul Haq used judge Anwarul Haq and Gen Musharraf used judges Irshad Hasan Khan and Dogar as rubberstamps.

In Islam, great emphasis is laid on justice, which has been made mandatory for all social, financial and moral aspects of life. The following verses from the Holy Quran stress this point:

1. Allah loves those who judge in equity. (5:42)

2. O you who believe! Stand out firmly as witness to Allah, even as against yourselves or your parents or your kin, and whether it be against rich or poor, for Allah can test and protect both. Follow not the lusts of your hearts, lest you swerve, and if you distort justice or decline to do justice, verily Allah is well-acquainted with all that you do. (4:135)

3. O you who believe! Stand out firmly for Allah’s witnesses to fair dealing and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just, that is next to piety, and fear Allah, for Allah is well-acquainted with all that you do. (5:8)

4. Whenever you speak, speak justly, even if a near relative is concerned. (6:152)

5. Say (O Mohammad), My Lord has commanded justice. (7:29)

6. Allah commands justice…and He forbids all shameful deeds and injustice. (16:90)

7. Say (O Mohammad), I am commanded to judge justly between you. (42:15)

8. But if the transgressor (between the two parties) complies (to make peace), then make peace between them with justice and be fair, for Allah loves those who are fair and just. (49:9)

We have a very defective legal system and the law enforcing agencies have a lion’s share in this. The police have a free playing field with few controls. They register false cases, implicate innocent people and take bribes. Sometimes a whole case is built on a false FIR, concocted evidence and/or admissions obtained by torture and in the end the court passes judgement on this false evidence. Unfortunately, lower courts are quite easily influenced and many innocent people are convicted for crimes not committed or cases drag on for years.

Under British rule a commissioner or deputy commissioner ran an efficient administration only with the help of locals. One of the main reasons for this success was the deployment of officers and staff in their own localities. Nowadays in Pakistan we have a topsy-turvy system. A man from Mianwali is posted in Karachi; the one from Karachi in Quetta; the one from Quetta in Peshawar. and so on. They do not know the local people, good or bad, and are not bothered to get to know them since they know they will soon be posted somewhere else. Sometimes they are more interested in making money than in good governance.

Courts decide cases on the merit of the evidence presented to them. People often forget this and cast doubts on the impartiality of the judge and lose faith in the courts. Lawyers play a crucial role here. They present the evidence and can cause undue delays. Courts too delay hearings and judgements, sometimes for years.

In most cases it is possible for a sharp sub-Inspector (SHO) to determine, within a day or two, who the accused (mulzim) and/or the criminal (mujrim) is. The same goes for judges. Within two or three hearings he often knows the truth of the case. If both these institutions were to work efficiently and honestly, then most cases could be decided quickly. I have seen this happening in China, where cases seldom continue for more than a few days and justice is immediately dispensed.

A heavy responsibility lies on the shoulders of the law-enforcing agencies and the lower courts to perform their duties with honesty and efficiently in accordance with the law and in compliance with the commands of our Holy Prophet (PBU) and Almighty Allah.

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One Response to “Judiciary, justice and the public”

  1. Honest People Says:

    Supreme Court under Iftikhar Chaudhry is utterly dishonest, highly incompetent, intellectually corrupt, politically motivated and totally biased. Reasons for this are detailed below:-
    1. In the judgment of 31st July 2009, 14 PCO judges including Chief Justice Iftikhar ousted 104 constitutionally appointed judges and dubbed them as PCO judges inspite of the fact that these 104 judges had never taken oath under any PCO. In fact Iftikhar Chaudhry and his handpicked bench became judges in their own cause and validated their own appointments. This is sheer dishonesty.
    2. NRO judgment is in clear violation of article 248. By referring to Swiss Cases President of Pakistan has been targeted despite constitutional immunity. Prosecutor General and Chairman NAB have been ordered to be removed from their offices. There is no law empowering the Supreme Court to order the removal of these persons.
    3. NRO judgment is not capable of implementation in totality despite Supreme Courts over exuberance. Supreme Court is just trying to cover up its blunders by forcing Chairman NAB to implement the said judgment lest Supreme Court gets exposed.

    PPP government and its legal team lack co-ordination and depth. Their comprehension is slow and response to the illegalities of Supreme Court is either lacking or apologetic. The Attorney General is not performing his constitutional role of telling the Supreme Court that Judiciary is exceeding its constitutional limits. The Attorney General is either silent in this matter for fear of contempt or is unaware of his constitutional obligations as Attorney General. The hitherto performance of Attorney General shows lack of competence and commitment. Senator Faisal Raza Abidi is a fairly competent person but he is alone. He needs a team of accomplished legal experts to support and supplement him. It appears that PPP’s legal advisers are hindering the formation of a larger team of legal experts in order to keep their monopoly. This monopoly is seriously undermining the writ of the government especially when it is facing strong opposition from PML [N] who have very close links with Supreme Court Judges. Some of these connections are detailed below:-
    A. Nawaz Sharif has links with Iftikhar Chaudhry through Rana Sanaullah and some other lawyers who are closely connected to Supreme Court Judges.
    B. Khalil Ramdey’s son who is a lawyer works for Nawaz Sharif. His nephew is also working for Nawaz and despite his inexperience he was made the Advocate General of Punjab but could continue because of his inability to perform the functions of that office.
    C. The daughters and a son-in-law of two recently appointed Supreme Court Judges are working in a law firm of one of the senior legal advisers of Nawaz Sharif. This legal adviser who is also a former Advocate General of Punjab is a close confidant of these judges.
    D. The aforesaid former Advocate General and Advocate Hamid Khan have close connections with Justice Jawad Khwaja. This judge at one time was working in the same law firm.

    Conclusion
    Peoples Party is growing weak because of its indecisiveness and inaction. PPP must tell the supreme court of its constitutional limits or quit. If Dr. Sher Afghan can take on the entire Supreme Court single handedly why can’t the government in power force the Supreme Court to remain within its bounds. Supreme Court’s own validity is questionable and that is why judges are behaving erratically.

    These facts are absolutely correct and can be verified by anyone.

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