Pakistan lacked justice. Then it got the ‘independent’ Supreme Court of Chief Justice Iftikhar Muhammad Chaudhry. Never in the history of the country was a court so popular. It set about doing its job of holding the executive to accountability under law.
The country had suffered because the process of accountability done earlier by the executives was politically skewed. The Supreme Court’s effort was to install real accountability and correct the impression that when Pakistan does accountability, it demeans itself.
Unfortunately, the function of the honourable Court has been politicised and the country is in crisis. No court in the world can survive politicisation: that happens when its decisions are interpreted by the people according to their party affiliations.
Great jurists like Oliver Wendell Holmes warned the courts to stay clear of politically motivated petitions. In Third World conditions, executives preside over ramshackle institutions. A judicial purist can easily go into corrective overdrive. In a country where the army, the opposition and the terrorists have a highly developed reflex of toppling governments, judicial activism can be seen as a departure from moderation.
Why is justice identified with moderation? Because it is to be differentiated from revenge — from the concept of ‘eye for an eye and tooth for a tooth’. Justice brings closure; revenge is cyclical. The moral location of justice is somewhere in the middle: the scales must be evenly balanced before they tilt.
In Islam, the idea of justice is conveyed through the word ‘adl’, which means ‘middle’. It literally means the load that is balanced on the back of a camel. Each side must be equal (idl). It is best represented by the scales (‘mizan’ from ‘wazan’) often erected at the front of a court. Here, again, the importance of the “middle” is emphasised. Our word for moderate comes from ‘adl: mu’utadil’. Our word for moderation is ‘e’tadaal’ from the same root.
Another word we use for justice is ‘insaf’, which is also from “middle” because it comes from ‘nisf’, the act of dividing something down the ‘middle’. The Holy Quran does not use ‘insaf’ in the sense of justice but we (understandably) do. The other Quranic word for justice is ‘qasata’, which we use to describe ‘portion’ (‘qist’): you get the portion you deserve, not more. It is close to the English justice, which means ‘exact measure’.
The Supreme Court has handed down decisions in the past that were politicised and hence made controversial. The famous Bhutto Case is called “judicial murder” and is haunting the Supreme Court today. In Bangladesh, ‘political’ verdicts have divided the nation. Perhaps, the Supreme Court in Dhaka, instead of rushing to verdict, should have let parliament revert the Constitution to secularism, resulting in the banning of religious parties.
Islam is definitely inclined in favour of the middle path. Even the nation of Muslim is ‘wassata’ or ‘median’. In Israel, justice is called ‘khok’ (‘haq’) because it protects the rights of all. In Russian, it is ‘prava’, which also means ‘right’, as in French where ‘droit’ means ‘justice and right’. Law, in English, means ‘laid down’ but it is from the root ‘lg’, which means ‘binding’, or ‘the act of joining’. One can say joining here means tying together the two extremes.
The idea of justice is close to the idea of beauty (‘husn’), which is described as balance and proportion. Islamic justice is mixed with ‘ihsan’ (from ‘husn’), which is probably the best way of describing moderation. When punishing someone, keep in mind the possibility of being merciful. Excess always fails to be instructive.
Published in The Express Tribune, June 20th, 2012.
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