Judiciary and tolerance

BABAR SATTAR

Chief Justice Tassaduq Jillani implored recently that, we have to protect the constitutional values of
democracy, or religious tolerance, of human dignity and providing inexpensive and expeditious justice.
Who can deny that our allegiance to these foundational values, upon which is founded our claim of being a
civilised society, is faltering? While reforming society falls beyond the judiciarys province, more power to CJ
Jillani if making our court system an emblem of tolerance figures on top of his agenda for judicial reform.
The causes of our growing intolerance are many. But most relevant to the justice system are two. One, if there
is lack of faith in the ability of the formal legal process to deliver justice those subjected to injustice resort to
self-help. And thus revenge and violence fill the space to be occupied by justice. Two, if there is no certainty of
punishment and the justice system is no deterrent, those who believe in enforcing their views and beliefs
through use of force are emboldened.
The manifestations of intolerance within our justice system include: composition of the judiciary; failure to
evolve meaningful jurisprudence on the right to liberty; tolerance for intolerance manifested in court
proceedings; self-righteousness or inability to distinguish between the law and personal morality; and failure to
breath life into a moth-eaten justice system that offers no hope to ordinary Joes.
In a diverse society, faith in impartiality doesnt grow because it is loudly proclaimed. The perception of
impartiality is linked to the representative character of institutions. Other diverse societies have relied on
affirmative action to ensure representation of minority and marginalised groups within administrative and
judicial forms to buttress their legitimacy in the eyes of marginalised groups.
In the entire history of our Supreme Court we have had not more than a handful non-Muslim judges Alvin
Cornelius, Dorab Patel, Rustam Sidhwa and Rana Bhagwandas come to mind. Never has a woman served on
the Supreme Court. More recently nominations of lawyers for the high court have been shot down because
they are Ahmedi or even because they are suspected of enjoying the forbidden nectar. Shia judges serving
even in the superior courts complain privately that they face faith-based prejudice.
Words alone might be insufficient to reassure minorities that our courts are impervious to the biases otherwise
on full display within our society. And the responsibility for lack of representativeness of our superior judiciary
rests with no one other than the judiciary itself. For our judiciary has aggressively guarded its turf to
singlehandedly determine its composition, even by toying with the perilous idea of striking down the 18th
Amendment.
Our courts have undoubtedly expanded the scope of fundamental rights over the years. We have seen
evolution of citizens economic rights. We have seen the states arbitrary decisions struck down under Article
25 (right to equality). We have seen expansive interpretation of the right to life under Article 9, which holds that
no person shall be deprived of life or liberty save in accordance with law. But what we havent seen is a
meaningful interpretation or enforcement of the right to liberty beyond its basic physical manifestation ie
freedom from arbitrary arrest.
What is more problematic is the judiciarys manifest tolerance for intolerance. Legal equality is fiction in a sense
that it is meant to exist despite social and economic inequalities prevalent within the society. But if the function
of courts is limited to endorsing and legitimising societal power relations instead of protecting the weak against
them, are such courts chambers of justice or expediency?
Lets turn to recent cases. Some zealot charged that a painting visible in a photo printed in a magazine
published by the National College of Arts was blasphemous. The publication had to be discontinued as a
means of resolving the dispute. Another zealot charged that a private school in Lahore teaching students the
history of religions in a course entitled comparative religions was indulging in immorality. The school had to
shelve the course to save its skin. The manner in which blasphemy suspects are convicted under mob
pressure needs no repetition.
In 1996, Justice Arif Bhatti of the Lahore High Court was shot in his chambers after the release of an 11-year
old charged with blasphemy. In 1998, the bishop of Faisalabad, Dr John Joseph, shot himself outside a
courthouse, to protest the persecution of the Christians in the name of enforcing blasphemy laws. Pervez Ali
Shah, the judge, who sentenced Mumtaz Qadri to death for killing Governor Salmaan Taseer, has been exiled
to Saudi Arabia to save his life.
We have also begun mixing law with personal morality. If unchecked this will oust legal certainty from the rule
of law and replacing it with the whims of individual judges. Self-righteousness can take reason out of law and
leave it at the mercy of the personal faith and moral preferences of adjudicators. Self-righteousness, if
practised by someone in judicial robes doesnt make it any less a manifestation of intolerance than that being
practised by someone forcing his personal moral code on a fellow citizen by holding a gun to his head.
If courts can neither protect themselves nor citizens from social coercion and the lesson learnt (with the help of
base survival instinct) is that it is better to appease the intolerant than to confront them, such courts might do
more harm than good by hastening the transformation of a coercive social consensus into a conformist one.
The writer is a lawyer.