Strictures as justice

OUR transformation from a predatory state to a predatory society is complete. We have

reconciled with the reality that theres no middle way: you are either a predator or prey;
and better former than the latter. The predators are the elite clubs. Mandatory qualities
for entry into these clubs are not excellence, integrity or perseverance, but pedigree,
unconditional submission to authority and unequivocal commitment to not ruffle
feathers and play by established rules.
This generalisation is not meant to undermine efforts of the few exceptions that have
gatecrashed elite clubs. But by and large the straitjacket fits. Within a club, hierarchy,
docility and sycophancy is key. If you play by these rules, you keep rising within the
ranks and stay protected against competing clubs and commoners. You try and change
club rules on the grounds of principle or question the lack of integrity by fellow members
and you are an instant pariah.
To state the obvious, we are talking about the political elite, the military, the judiciary
and the bureaucracy that forge the vital link between state and society. There might be
a tug of war between competing clubs as an institutional matter. But in dealing with
personal interests of elites within elite clubs, even a competing club is expected to
exhibit regard. Sounds cynical? How many politicians, judges or generals have been
treated like outcasts by our state or society?
If youre an aspiring or junior member of an elite club the advice of old hands is to fit in
and not stand out, to project an image of mediocrity and not distinction, to appear
flexible in application of rules and principles and not rigidly incorruptible. This is meant
to be earnest advice in view of the moral compass of our society. And if you think
flattery pays dividends in family-led political parties alone, wait till you see it being
practised in the form of buffoonery by aspiring judges and generals.
While elite clubs appreciate the application of a different code to their members and
have the resolve not to allow their sense of entitlement and preferential treatment to be
diluted by lofty principles such as equality and fairness, they also recognise that the
apartheid between elites and commoners is inherently wrong and cant be publicly
acknowledged. In an attempt to reconcile this contradiction, what has emerged is a new
model of justice, accountability and discharge of responsibility through the passage of
strictures alone.
Look at the militarys institutional response post the OBL(Osama Bin Laden) imbroglio.
There was admission of intelligence and security failure by the DG ISI. He offered his
resignation to the army chief and parliament, which was rejected. The general censure
was deemed accountability enough. The abominable Arsalan Iftikhar-Malik Riaz
scandal that inflicted serious harm on the integrity of the apex court and the office of
the chief justice was brushed aside, not by the former chief justice alone, but by the
judiciary as an institution.
Amina burnt herself to death not when she was raped by humans, but when she
realised she was going to be raped all over again by our criminal justice system. The
Punjab chief minister showed up, bent the ears of police officers in public, ordered a
couple to be handcuffed, threw some money at the victims family and moved on. This
cathartic model, focused not on remedying entrenched societal and institutional
ailments but on dousing public rage, is inherently flawed for it presents passage of
strictures as justice and accountability.
Mastered by former chief justice Iftikhar Chaudhry, the strictures-as-justice business
has caught on. The present chief justice has also grown fond of suo motus. But to what
end? In 2005 the SC took suo motu notice of the Mukhtaran Mai case. The alleged
rapists remained locked up and no inferior court would accept their bail. Six years later
the SC declared all, except one, innocent. While strictures abound, there is no
noteworthy effort to kick-start institutional reform or even a solemn recognition of such
need.
Another manifestation of strictures-as-justice is an unprecedented review matter
decided by the SC wherein a sitting high court judge sought expungement of the SCs
observation that the judge had granted bail in a manner that was a colourable exercise
of authority. In rejecting the review the apex court further clarified that the judge was
censured not because he applied the law incorrectly but because he exercised his
powers on the basis of extraneous considerations i.e. not on merits of the case but to
accommodate a lawyer.
Who can fault the courts emphasis on the principle of consistency in deciding cases or
need for unimpeachable judicial integrity? But here the apex court has applied these
principles in a manner that has further undermined public faith in judicial probity. The
definitive SC verdict has blemished the reputation of the high court judge without
affording him due process in Article 209 proceedings. The consequence is that despite
his integrity blemished by the SC itself, the judge has been left alone to distribute life
and death amongst people while hearing murder references.
Strictures-as-justice wont work for long. What we need is comprehensive institutional
reform. But that wont happen till our elite clubs decide to change the way they do
business. If they dont, change for angry commoners will mean replacement of the
system and not its reform. That opportunity will be ceased by a new category of bigoted
and vicious predators already knocking at the gates.

The writer is a lawyer.

sattar@post.harvard.edu