The judgments we need

When it comes to the law of the land, it’s not easy being a liberal in America. Courtesy the Reagan-Bush combine, the Supreme Court’s appointees-for-life seem to come in all shades of Republican red. At its helm is Chief Justice John Roberts, a gentleman whose deep-fried conservatism is softened by his Midwest manners (enforced, of course, by well-written judicial opinions).

As both op-eds and empirical studies agree, Roberts leads a five-man conservative majority in a nine-member bench, pushing and prodding America’s legal landscape rightward. Here’s what it ruled for: the prohibition of abortion procedures in Gonzalez, the ‘constitutional’ right to carry guns in Heller, and full discretion for corporations to splurge unlimited tons of cash on political campaigns in Citizens United.

Here’s what it’s ruled against: racial integration in schools in Parents Involved. For Roberts and his Reaganite comrades, the country was powered by a ‘colour-blind’ Constitution, and any affirmative action based on skin colour was downright crude (ironically, red judges Scalia and Thomas both owe their places on the bench, in varying degrees, to affirmative action).

The sequence makes it plenty clear: there is — at the judiciary’s highest levels — an agenda afoot. And that agenda’s driven by ideology, one that’s swung both ways: the long-gone Warren Court of the ‘50s and ‘60s was as blue as the Roberts Court is red today.

Over in Pakistan, our superior courts’ history hasn’t been coloured in the hues of right and left — its problems were a tad more pressing than party lines: squeezed out by the civilians, penned in by the generals, forever a yes-man to the sovereign of the time — our courts long had a bad rap. How else does one explain the same judiciary that rejected martial law in ’74 (Asma Jilani), re-upheld it just three years later (Nusrat Bhutto)?

There was, of course, the odd flash of character: when the Munir Court upheld the sacking of parliament in Tamizuddin, it was one Justice A R Cornelius who penned the lonely dissent. Decades later, it was Justice Dorab Patel who refused to swear loyalty to the army chief under 1981’s PCO. “How can I take such an oath?” Justice Patel asked Justice Ebrahim (Fakhruddin G Ebrahim sahib would also refuse).

But that’s all the past now: post-2007, it’s a brave new world, and the rule of law has never been closer at hand (or so our Lordships tell us). Our judges claim independence, take suo motus to their hearts’ content, and set the national conversation on justice — what it means, how it’s dispensed, and how it’s accessed.

Even having suffered the indignity of military tribunals running alongside it, it’s the Supreme Court that still sets the agenda. So why are we still here?

This past Sunday, Youhanabad’s churches were hit by two suicide bombers — an act of murder targeting worshippers. The PML-N was quick to announce “a package of Rs500,000 for the victims’ families” — it failed to mention it hasn’t yet released the funds compensating the last church blast victims — All Saints in Peshawar, 2013. The PML-N, as the general public knows, isn’t the kind to rebuild church spires — Gujranwala and Gojra and Joseph Colony are testament enough.

But forget the state altogether; what was shocking was the public’s reaction: rather than mourn for those killed during Mass, Pakistanis were intent on cricket instead — on television, in the printed press, all over the internet, the vast majority was busy celebrating a lacklustre victory in a lacklustre match against a lacklustre side like the Irish.

This is shameless: in the wake of the Peshawar school attacks last December, it was the Christian community that muted its Christmas celebrations all over the country in solidarity. To think the vast majority of us couldn’t show even half the same dignity is sobering.

Pakistan, it cannot be emphasised enough, is premised on the protection of minorities: without that core tenet, the idea that created this country means less than nothing. There needs to be a sea change when it comes to the state’s treatment of our minority communities — for the longest time, the white has been made to systematically bleed out of the green.

The cure’s been provided us several times — we’ve just not had the courage to administer it yet. Chief Justice Tassaduq Hussain Jillani’s landmark judgment, Suo Motu Case 1 of 2014, lies in cold storage. The current bench takes it up for non-implementation, a hundred thousand hurdles — in the form of Concerned State Officials — present themselves to the Honourable Court, and it’s left to lapse.

To recap perhaps the fifth time in these very pages, the judgment provides agonisingly simple directives: a federal task force to encourage tolerance, a special police force for minorities’ places of worship, reform in curriculum, a national council for minorities’ rights, the punishment for hate speech and minorities’ quotas enforcement.

Progress has yet to be made on a single front — and that’s just minorities. As with the fresh legislation, parliament keeps stamping in, the trouble lies not with bringing those judgments in — it lies with implementation. We celebrated the minorities decision not in the knowledge that it made it to the law books, but in the hope that it would come to pass. We celebrated Asghar Khan v. Aslam Beg, not in the knowledge that Chief Justice Iftikhar Chaudhry directed an investigation, but in the hope that the demons brought in by General Beg & Co. would be exorcised from our democratic process forever.

And we continue to hope. “The very genesis of our country is grounded in the protection of religious rights for all, especially those of minorities,” writes His Lordship. As protests grow violent across Punjab, it’s high time we implemented that judgment. Even if it means stepping on the state to do it.

Published in The Express Tribune, March  17^th,  2015.

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