Where is the justice?

There is a structural contradiction within the ‘justice’-delivery apparatus

By Aasim Sajjad Akhtar

The Supreme Court’s decision to acquit five of the six men that were involved in the gang-rape of the now world-renowned Mukhtaran Mai has quite understandably elicited widespread outrage. This latest pronouncement of our country’s most powerful institution of ‘justice’ will no doubt subject the victim and her family to a fresh bout of emotional and mental violence. But it should also discredit once and for all the fashion of looking to the Supreme Court as the panacea to Pakistan’s myriad problems.

Of course, right-wingers throughout our land of the pure continue to hope (and pray) for their latest messiah - the Chief Justice - to wave his magic wand, rid Pakistan of its incomparably ‘corrupt’ politicians, banish infidels from this Kingdom of God, and put us all on the righteous path towards Zia’s Pakistan (no doubt on the back of our heroic generals). This will not happen, not necessarily because certain judges and generals would not want to proclaim themselves messiahs but because the balance of forces in Pakistan’s infinitely complex calculus of power is simply not amenable to such upheavals at the present time.

Yet, even beyond the Machiavellian antics of our elite and its foot soldiers, the media has managed to create a popular perception that the Chief Justice - and his Supreme Court - is the last bastion of ‘justice’ in a society where injustice is rife. Thus, all over the country - although much more so in Punjab’s cities and Karachi - the poor and dispossessed sit in front of Press Clubs and other prominent locations with placards in their hands appealing to the Chief Justice to take note of their plight.

The ‘suo moto’ craze has subsided to some extent as it has become apparent that the designated messiah does not actually take up the cause of every long-suffering victim of class or legal oppression. Yet largely because segments of the media continue to project the Supreme Court in an extremely positive light - helped I am sure by the honourable court’s own populism, of course - many of the most wretched of this Pakistani earth continue to wait in hope.

Even high-profile decisions that fly in the face of the Court’s populist image, including the Mukhtaran Mai case, are pitched in certain ways to save the cause of ‘justice’ even while rendering legitimate patriarchy, historical privilege and the overbearing power of the state. I would argue that it is high time that the myth of the institutions that dispense ‘justice’ in this country is exploded once and for all, even if the media and other influential segments continue to forge ‘public opinion’ according to their own agendas.

In truth, it is misleading to even employ the word ‘justice’ to refer to the institutions of the state charged with adjudicating on disputes and administering public goods. As with every other institution of the state, the ‘justice’-delivery apparatus has changed little since the colonial period. Under the Raj, ‘justice’ meant only the enactment of laws that were framed in the interest of the colonial state. More often than not, the ‘justice’-delivery apparatus enforced upon state subjects draconian arrangements that served to extract the maximum amount of surplus from society whilst maintaining order. The emphasis was on the credible threat of force and exemplary punishment.

More than six decades on from the end of colonial rule, ‘justice’ is still an ambivalent notion for most ordinary Pakistanis. While we all come into contact with the thana and katcheri to some extent - the subordinate classes much more so than the dominant ones - it is generally true that we harbour little expectation that these institutions will dispense justice impartially. In fact, it is not uncommon for ordinary people to circumvent these institutions entirely which suggests a distinct lack of confidence in them.

There is a structural contradiction within the ‘justice’-delivery apparatus that explains its role as well as the ambivalent attitude of ordinary people towards it. On the one hand, the British vowed to create an impersonal, legal-rational justice-delivery apparatus that matched up to the classic Weberian prototype. In practice, what came into being was far from impersonal whereas - as I have already mentioned - law itself was a function of political machinations rather than the popular will.

Nevertheless, one does hear old-timers pointing out that there was some semblance of impartiality under the British in comparison to the almost completely arbitrary state of affairs that has taken shape in the post-colonial period. This is, of course, misleading because it is the very nature of the state - and justice-delivery apparatus in particular - that the British created that has facilitated the rapaciousness and privatization of public institutions that we are all witness to today. By subordinating political to administrative institutions on the one hand, and instituting an illegible set of procedures and systems on the other hand, the British ensured that a certain oligarchic elite would forever remain powerful whilst being able to draw upon the law and the slogan of justice-delivery to maintain their power.

In recent years the international financial institutions (IFIs) have thrown money at our governments to reform this ‘justice’-delivery apparatus. The Asian Development Bank (ADB) issued loans of hundreds of millions of dollars under the guise of the Access to Justice programme. Just like the donor money that was given to Musharraf to devolve power to the local level and reform the civil services and police, the Access to Justice programme smacked of colonialism of the most insidious kind - that which claims to empower the ‘natives’ whilst reinforcing structures that disempower them decisively.

The biggest fallout of the movement that signaled the end of the Musharraf dictatorship was the reification of the higher judiciary and the suggestion that the Chief Justice and other judges were able and willing to truly change the destiny of Pakistan’s long-suffering people. If nothing else, decisions such as the rejection of Mukhtaran Mai’s appeal are conclusive proof that the formal state apparatus does everything but dispense impartial justice to the most weak and vulnerable segments of our society.