Clear and Present Danger
One of the better recognized pronouncements of the widely quoted Oliver Wendell Holmes involved the “freedom of speech” and licence thereof. The most liberal Judge of the US Supreme Court in his time gave an example about a man, who while watching a movie, starts yelling “fire, fire”, 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, to allow such a “freedom” would result in injuries, even deaths to innocent bystanders, what should be the logical course of justice? Oliver Wendell 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 recognize 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.
Deterioration of the law and order situation tends to put economic order in jeopardy, when an economic state of affairs is already in an advanced stage of apocalypse, the problems are force-multiplied by those who take law into their own hands. The emergence of a new breed of sophisticated criminals who misuse democratic power at will to violate the law at will threatens the foundations of our society. The modus operandi is (1) to bribe or coerce the concerned individuals of the law enforcement agencies to ignore their excesses or even collaborate with them (2) if caught in criminal acts, to bribe the concerned individuals in the investigating agencies to so spoil the evidence that the case cannot be brought to trial or successfully prosecuted (3) if in police custody, to seek medical reprieve to be relatively free with facilities of TV, air-conditioners, good food, visitors at will, hard liquor etc, in short all the comforts of home (4) if brought to trial, given that witnesses and evidence are forthcoming, to hire expensive and clever lawyers who can browbeat the courts into accepting their client’s point of view leading to the person’s freedom (5) turn the courtroom into a drama that will coerce the judges by latent blackmail and (6) misrepresent facts aforementioned in the court of public opinion by a sustained media campaign. Direct access to political power by the winning of Assembly seats makes for a combination with money that is lethal. The majority of the citizens of Pakistan are hard-working, honest people, mostly illiterate, who see their meagre salaries dwindling in the face of galloping rise in consumer prices while eking out a miserable existence, while others much less worthy add that runaway inflation by their illegal incomes outside the purview of the law. Everyone has a right to legal cover but justice has become a privilege of the rich, the poor simply cannot afford it. In any society this is a tragedy, in an Islamic State it is a curse, something to be eradicated with a vengeance.
There is no protest in the United States against the fact that the functionaries of President Bush, who is Head of State and Government, are prosecuting his son, Neil Bush, over the Saving & Loans scandal, simply because there is a concept of blind justice in the USA, it does not spare anyone, the President himself or his son. In third world countries, justice is totally blind to the excesses of the powerful and/or the rich since they command influence and expensive lawyers. US legislators fall over themselves to uphold the rule of law within USA, why is it that they cannot countenance the same pursuit of justice in third world countries? All western nations have Embassies and Consulate Generals in Pakistan, some of whom may even have better knowledge (other than those who do not circulate beyond the cocktail circuit and a regular set of Pakistani party-goers whose views are far removed from reality) of what’s going on than many Pakistanis themselves. The real situation may not be divorced from the diplomats. Businessmen who are asked for bribes outright “for the Party” regularly keep their own Embassies informed. The diplomatic personnel have a moral obligation to convey the truth to their own governments, failing in that their morals are no better than that they pretend to abhor.
The present ham-handed accountability process would put Inspector Clouseau (of Pink Panther fame) to shame. Some of it can be put down to sheer inefficiency of the investigating teams, the deadly charm of the colour of money has mostly obscured blatant evidence. The Medellin Syndrome is now enveloping Pakistan, while drug traffickers have carved out their own separate niches with gold, the easy money acquired by looting the banks is mostly in play today. For the democratic order this is tragic, functioning in the name of justice, can those bought over by criminals render any justice?
The concept of justice in the third world has been badly effected by the trial of Madam Marcos, defying sensible analysis in the eventual “not guilty” verdict. The Marcoses brazenly looted the country’s wealth, going on shopping sprees that left even the richest Americans agog, a couple of billions US dollars are in frozen Marcos Swiss accounts pending court decisions. The New York Court that freed Madam Marcos Court sounded a death knell for honest leadership in the Third World. Western nation’s perceptions about Third World leaders are clouded relating with those on the social circuit who speak the same language with ease, have studied in Western schools and (theoretically at least) profess the same ideals. Glib-tongued confidence tricksters without any constituency whatsoever in this country have as a result become the modern day versions of “Rasputin”.
An era ended with the unfortunate hanging of late Prime Minister Zulfikar Ali Bhutto. While there was rampant corruption between 1947 and 1979, it would be impossible to go over that whole period without being bogged down. The first phase in the era of accountability SHOULD cover the period 1980 to 1990 encompassing the rule of (1) late President Zia (2) Former Prime Minister Junejo (3) President Ghulam Ishaq Khan (4) Former Prime Minister Ms Benazir and (5) Present PM Ghulam Mustafa Jatoi. Even correct decisions by the Courts of law will lose credibility in the court of international public opinion by cries of partisan witch-hunting, for us this will be an endless tragedy.
Special investigation teams comprising persons of known integrity from volunteers among retired judges, lawyers, chartered accountants, ex-servicemen and retired police officials, etc, each residing in the area of enquiry, must be formed. Those selected at the Federal, Provincial and District level (even lower) should undergo public scrutiny of their previous conduct, present assets and possible partiality so that skeletons in their closet can be cleared at this stage. They should at first investigate the individuals of those government agencies undertaking criminal investigations, putting the corrupt “catchers” in the rye, otherwise such scoundrels are going to run wild like a rabid wolf-pack, a threat to our concept of society. The courts of justice normally adjudicate according to the physical evidence, if the evidence presented in court is deliberately spoiled, what does one expect the poor judges to do, even in the face of common public knowledge? The courts of justice have a superior moral responsibility to sift through the evidence, however vitiated by motivated interest and take decisions based on what their conscience dictates is in the higher interests of society and the country. Unless we clean out the muck from this den of evil, society is in real trouble. The recent incident in the Lahore High Court where PPP workers disrupted the sanctity of the superior judiciary is abominable. This amounts to deliberate coercion which is unacceptable in a democratic society and must be condemned unequivocally by Ms Benazir. One of the most scandalous and horrifying facts is that the Anti-terrorist Courts in Sindh do not have a place of their own and the staff have not been paid salaries for months, serving to show the priority we have given to counter terrorism in the Province of Sindh.
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. Judges are also human beings, a part of society. If the courts are made incapable of dispensing justice in the real sense of the word then who will bear responsibility if an authoritarian regime takes over power? In Third World countries, and particularly Muslim countries at that, authoritarian regimes are a way of life and they include almost every nation (with Malaysia somewhat of an exception), even monarchies and those “pet” countries which are not (for geo-political reasons) usually the focus of attention of human rights violation, e.g. Indonesia, Egypt, Morocco, etc. Our Press has been relatively much more freer under the worst excesses of Martial Law than any of the Muslim countries, monarchies included.
The catch word is “failure”, failure of the system leading the evidence upto judicial review, leading to failure of justice to take cognisance of wrongdoing. If justice fails then the economic system will fail, affecting in turn the democratic order, then the alternatives are never far away, the rest of the world may not find it palatable, in their own geo-political interest they will just have to get used to it. There is no substitute for democracy, the worst type of democracy is always better than the most benign martial law but if subversion of the system threatens the existence of the country, what are the choices? Martial law can never be better than democracy, but it is certainly better than having no country at all!
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