Frustrating the rule of law

Judges are frequently rendered powerless by wording of the “Law of Evidence”, as it frustrates the spirit of justice

Smashing more than half a dozen vehicles parked around the Minhajul Quran Secretariat on June 17 in Model Town, Lahore, under the rather benign patronage of the Punjab police, the man who perpetrated the vandalism refuses to go away from the public eye. The term ‘Gullu’ may likely become part of Oxford Dictionary, standing for the disruptive behaviour of someone enjoying (whether explicit or implicit) backing of the ruling/powerful segments of society. When anyone is threatened or harmed by the powerful figures in Pakistan and/or their cronies, their lackeys perpetrating that violence are now being referred to as ‘Gullus’, its usage needing no further explanation, having been properly encoded and decoded by the public.

Writing recently to Oxford Dictionaries, Syed Shamim Azam, a linguist from Lahore, requested the inclusion of the word ‘Gullu’ in its upcoming edition for Pakistan and India: “People having ‘Gullu’ characteristics have been around us for a long time; for the first time, we now have a symbolic manifestation with linguistic value to denote all such characters.” Considering that events have certainly established the semantic value of the word, the publishers of Oxford Dictionary confirmed that if “a term achieves enormous currency with a wide audience in a much shorter space of time, and people expect to find the new 'high-profile' word in their dictionaries, it sure is included in the dictionary”.

Gullu Butt’s counsel pleaded before the Lahore High Court that a division bench had released him earlier on bail but that he was detained by the government again. Representing the home secretary, a law officer maintained that Gullu Butt, shown on live television leading a police baton charge and vandalising property, was a threat to law and order. Not admitting the video evidence, Justice Muhammad Qasim Khan declared Gullu Butt’s detention illegal and directed his release. Judges are frequently rendered powerless by the wording of the “Law of Evidence”, as it frustrates the spirit of justice inherent in any constitutional system. The responsibility of upholding the values and concept of democracy is primarily on our politicians, in the negligence or absence of which, the burden has fallen on our superior courts. As part of society, judges are also human beings. Such laws have made the instruments of exercising of power — the judiciary, or the rulers themselves — incapable of dispensing justice in the real sense of the word. When we cannot apply the law of the land in ‘open and shut’ cases like that of Gullu Butt, what does one do? The catchword is ‘failure’; failure of the system, leaving the evidence up to judicial review, which leads to failure to take cognisance of wrongdoing.

Quoting my article of January 23, 1999, “One of the better recognised pronouncements of perhaps, the most widely quoted judge of the US Supreme Court in his time, Oliver Wendell Holmes, involved the ‘freedom of speech’ and licence thereof. A man while watching a movie starts yelling ‘fire, fire’, thus, leading to a stampede towards the exits of the movie theatre with resultant injuries (even deaths) among the cinema-goers. Restraining the man or punishing him would technically violate his freedom of speech, allowing such a ‘freedom’ would result in injuries, even deaths to innocent bystanders, what should be the logical course of justice? Justice Holmes said that when any individual misuses any freedom (in this case, of speech), endangering others in any manner, the concept of application of justice must recognise the situation as a ‘clear and present danger’ and the individual must be restrained, relying more on the tenets of logic rather than the pure letter of the law”. Are governments any different from individuals?

According to Wikipedia, ‘self-defence’ is a right of civilians acting on their own behalf to engage in a level of violence, called reasonable force or defensive force, for the sake of defending one's own life or the lives of others, including the use of deadly force in certain circumstances; a fundamental human right, it without exception justifies all uses of violence stemming from this right. Article 12 of the Universal Declaration of Human Rights states: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” In the absence of justice a la Gullu Butt, citizens can take the law into their own hands as vigilantes to render “mob justice”. Article 35 of the New York Penal Code permits the use of force under certain circumstances: “Justification does not make a criminal use of force lawful but if the use of force is justified, it cannot be criminal at all."

When criminals function in the name of justice (a la Gullu Butt), justice becomes a crime; a public vigilante reaction could than become an existential threat to law and order. The superior judiciary consisting of citizens of this country must be acutely aware of the looming anarchy if it fails to apply justice in the real sense. With or without the Supreme Court’s assent, the necessity of a ‘doctrine’ would then become imminent in the face of “clear and present danger” to the state.

Published in The Express Tribune, October 2^nd, 2014.

Like Opinion & Editorial on Facebook, follow @ETOpEd on Twitter to receive all updates on all our daily pieces.