To provide justice is a central endeavour of any human society and the aim of any state. However, not all human societies have the same idea about what is just. This means that the idea of justice is different in different cultures and it changes over time. The understanding of justice in a tribal or a feudal society is different from a democracy where justice is supposed to mean fairness administered to all members of society equally regardless of their social standing or financial status.
Pakistan with its state and laws is mainly an inheritance of British rule. Ever since independence we have lumbered with the utilitarian idea of justice left behind by the British, which means justice is what has the best consequences measured by the total average welfare that they cause. One may see that this understanding of justice limits the idea to its material dimension. In the hands of parliamentarians and politicians who are mainly feudals and thus understand the ‘common good’ as to what is good for themselves, their families, clans, associates and friends produces laws that serve their welfare in the first place instead of the welfare of the country and all its people. Pakistan is perhaps the only country in the world where feudalism is alive and flourishing.
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Calling itself an Islamic Republic, Pakistan, since its inception has made a very incomplete and weak effort to fill this idea with any great relevance. Justice in Islam is a central category; it is so important that ‘JUS’” is one of the beautiful names of God. The Quran in many places provides examples and even rules as to what justice means and how it is to be administered. This Islamic understanding differs from the one practiced in Pakistan in two main fields: first, justice is not only a material category but it has a spiritual dimension; secondly, all people of a society deserve justice equally, Muslims and non-Muslims, rich and poor.
Based on such an understanding the laws that would be devised would be able to punish all wrong-doing, including even the hidden one. But Pakistani laws have been made by the feudals for the feudals, they rather promote hiding of ill-gotten wealth. How do we know that it is ill-gotten if we can’t exactly prove the ill way it has been accumulated? The formula ‘means beyond known sources of income’ is the key and must be applied diligently and relentlessly. An honest man can always prove where his money comes from and if he can’t then there is something fishy. In such cases a ‘reversed burden of proof’ should be the solution. Let the owner explain where, when and how he has acquired the money, land or other assets, and if and how he has paid taxes commensurate to such a case. In cases when the ownership cannot be established the asset should be taken into state custody until the ownership and acquisition details are cleared.
Our problem stems from having defective laws of evidence that really have no relevance in the 21st century. When we say justice delayed is justice denied, do we cater for clever lawyers who use every technical point that they can raise to delay the due of process of the law? Money-laundering is an “open and shut” case yet we will lumber on in courts while lawyers, who are technically at least ‘friends of the court’ and must endeavour to reinforce the rule of law, use every trick in the book to somehow obscure the evidence against their client by using means to prevent it being allowed as evidence.
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And what do we do about frank perjury? With all respect, how many people has the Hon’ble chief justice of the Supreme Court put behind bars for giving false statements under oath? Perjury or lying in court is an especially dangerous criminal offence because it undermines the very purpose of the court, the laws of the country and the judicial system at large: to bring justice to the people and society.
To deliver justice has always been an important endeavour of any state and an administration or government that cannot and does not deliver justice is not credible; in fact, it weakens the system and the state. The honest citizens of the country feel discouraged to go to the courts because they are not sure that justice will prevail and the crooks. But the crooks approach the courts because they are quite sure that they can manage things to their satisfaction. So, implementing the respective laws and fighting against perjury should be a major aim for our courts to improve the delivery of justice.
One central principle of justice is that all persons should be equal before the law, i.e. the law applies to all equally – to the chief minister as much as to all other citizens. This is even today not understood and practised in Pakistan. There are ‘good families’ and a person with a lot of money can ennoble himself. And then somehow the laws apply differently or not at all. But in a modern democracy, one Pakistan tries to emulate, the citizens ideally would share the understanding of justice and its delivery and would step down voluntarily if and when their integrity comes into question. Fighting corruption is a demanding task everywhere in the world but it is especially difficult in Pakistan where most of the ruling class and sitting politicians are part of the problem rather than the solution.
The solution of our problem might lie in the fact that we are trying to emulate a state and a system that doesn’t really fit our society. Because of the limitations of justice in the West to its material dimension, lawyers don’t have to take into account the spiritual and moral meaning which is a just society the way God planned it and revealed it to its successive prophets.
The West has done away with that part of the story. That is why they say ‘innocent until proven guilty’. But shouldn’t an Islamic Republic do it otherwise? Ill-gotten money remains ill-gotten money as long as it is not proven otherwise and ‘guilty or under suspicion until proven otherwise’. The presence of undeclared money and other assets and the possibility to get away with it indirectly corrupts society by dangling this option before us. If one can get away with it why not me as well? Islam does not accept the separation of material and spiritual contents of justice. In an Islamic society, laws have to be made and applied in a way that serves not only their letter but spirit as well. And the spirit is to provide justice in the eyes of God. For Muslims not only the ‘here-and-now’ but the ‘hereafter’ matters for those who make the laws, who apply them and who try to undermine them.
Under such circumstances, do our laws of evidence provide justice or have they been framed to avoid justice?
The writer is a defence and security analyst.