Fiat iustitia et pereat mundus
The writer has served as Chief Secretary, K-P. He has an MA Hons from Oxford University and is the author of two books of English poetry 'The Dragonfly & Other Poems' and 'Bibi Mubarika and Babur’
The judiciary, especially the Supreme Court, is the last repository of justice. It is the most powerful organ as it can pass licit orders in respect of any individual or institution of state which they are bound to obey.
Upon reflection the common belief that the judiciary possesses ultimate power is more a legal fiction. In case an individual or institution or an organ of state refuses to comply with the judgment or orders of a Superior Court, the latter lacks coercive power to ensure abidance. Portals of superior justice thus can only be ‘deemed’ to possess boundless force either because of the historically imbedded belief in law’s supremacy or since a constitution so prescribes it.
But theoretically one can imagine real situations where legal edicts are not observed. In the last resort it is the coercive arm of the state, the police or the military, which provides meaning to the apparent power of the judiciary by enforcing compliance through actual or threatened use of violence.
The force of moral authority being more enduring and permanent than coercive power is a pertinent consideration. Moral acceptance of authority is based upon the presumed belief that heeding to moral authority leads to protection and promotion of human self-interests in the shape of upholding of inalienable rights of life, liberty and the pursuit of happiness.
David Hume in his work, Of the First Principles of Government, wrote that he found nothing more surprising “than the easiness with which many are governed by the few and to observe the implicit submission with which men resign their own sentiments and passions to those of their rulers. When we enquire by what means is this wonder brought about, we shall find that as force is always on the side of the governed, the governors have nothing to support them but opinion (or consent). ‘Tis therefore, on opinion (consent), only that government is founded; and this maxim extends to the most despotic and most military of governments as well as to the most free and most popular.”
With Hume, respect for law is ingrained in our minds due to force of habit or custom. It is prescribed in every society as a precondition to safe, progressive and civilised life, attaining the status of a normal state of human life notwithstanding that is it not so self axiomatic.
The social contractualists theorise that humans give away certain of their natural rights to an organised state in exchange for maintenance of peace, security and justice. In this bargain is implicit the giving to the state the coercive power or the right to use force to ensure the terms of the bargain between man and society. From this evolves the concept of the right of state to use force or the threat to use coercion to ensure that men pay obeisance to law and its application and enforcement by the judiciary.
Thus law or the courts of law by themselves do not intrinsically possess the means of violence or intimidation to enforce its writ. But a fiction exists that laws and their interpretation or application must necessarily by observed. Behind the concept of respect for laws lies the latent threat of its enforcement by coercion by violent means of the state.
In revolutions, a certain legal order that loses its moral authority is challenged or overturned. A mutinous rebellion may also arise when life, property and honour itself is imperiled in a despotic state. John Locke accepted the right of a people to rebellion or revolution when their lives are at peril.
That is why the legitimacy of a legal order, a state or a judiciary is symbiotically tied to their moral and ethical foundations and justification. Justice must not only be done but also appears to be done. Only when justice adheres to and meets the values of fairness, equity and transparency can it expect to obtain unquestioned acceptance.
Independence and credibility of a judicial order arises from not only the conduct of those sitting in a judiciary but also by their judgements meeting the criteria of true impartiality besides observance of norms of equity and fairness.
Justice is blind and thus must be impartial and unprejudiced to status, caste, gender, colour, creed and politics. Although, since judges grow up, are appointed and operate in politicised environments and since judges too possess political predilections, it is difficult to conceive of complete apolitical courts. Court packing is not an uncommon phenomenon even in advanced democracies.
Yet it is a test for judicial probity and credence to abnegate what appears taking patent political sides. The force that judicial independence commands is otherwise diluted and willing public acceptance is replaced by abject acquiescence that tends to threaten the whole fabric of social justice and consent. Society thus teeters between willing consent and disobedience.
Violence in a sublimated legalised form constitutes the foundation of civilised society or an organised political system. Humans trade off part of their unimpeded freedoms, to allow for social life, by ceding the powers of force or violence to a polity which ensures life, liberty and freedom. Thus began social, political and cultural life.
Underlying a state or a political system is the implicit contract that human life is not feasible or possible without a compact wherein absolute freedom is subjugated to restraint and curtailment so that as they say, “my rights extend to where your nose begins”.
A political system is thus nothing but humans voluntarily delegating to a state the power and authority to use force within the norms and bounds of civilisation and culture.
But intrinsic to willing or indirect consent is not so much the recognition of force but the moral authority to claim obeisance.
How does the judiciary of a country and its judgements command respect? Why is it that we believe that somehow a judiciary has some semi-religious authority and other worldly powers which if contravened would be tantamount to sacrilege or turning the orderly state of the world topsy-turvy?
Unreserved allegiance to a judicial system subsists only when undiluted and independent justice is both done as well as seen to be done, irrespective of political considerations. Fiat iustitia pereat mundus: let justice be done though the world perish.
Published in The Express Tribune, April 7th, 2023.
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