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Justice must be done

August 31, 2012

AS a captive public awaits the next iteration of the never-ending showdown between the ruling party and the highest court in the land, one cannot help but feel that the biggest casualty of all is that age-old notion of justice.

It is ironic that this should be so during a phase of our history in which the judicial arm of the state is at its most assertive. Ironic yes, but hardly surprising, as anyone with even a cursory understanding of the history of juridical order in this country can testify.

The idea of justice is an entirely normative one. The mainstream media, intelligentsia and political establishment the world over would like us to believe that only a handful of loonies now refuse to ascribe to the recognised principles of just order, but in fact conflict over what is just and what is not is as prominent in the 21st century as at any other time during the modern period.

Indeed, in this country and beyond there exist many popular — and often militant — movements that challenge state power under the guise of delivering justice to those to whom it has been denied.

Then there are what would appear to be the less complicated examples of previously exclusionary or even genocidal regimes that have been banished to the dustbin of history.

Notwithstanding the famous adage ‘justice delayed is justice denied’, in these cases too there is a clamouring for once official personnel of the erstwhile state to be brought to account for their crimes against ordinary civilians.

One such case is that of former East Pakistan. In 2010, the Awami League-led government set up a War Crimes Tribunal to bring to justice those individuals and groups who are alleged to have been involved in massacres, rapes and other violations of ordinary Bengalis during the civil war.

The tribunal has faced criticism from many quarters for being partisan and not conforming to internationally recognised procedures, but there is little question of its legitimacy amongst many ordinary Bangladeshis that still carry the scars of 1971 in their hearts.

This is not to suggest that popular or majoritarian conceptions of justice can never be disputed. There have been too many instances of mobs maiming and killing helpless individuals in broad daylight in this country — the case of the young Christian girl accused of blasphemy is only the latest — for us to simply accept that ‘the people’ are always right.

In any case, we need to pay attention to what is happening in Bangladesh, if for no other reason than the fact that the individuals being indicted are a part of our own history.

Of particular note are those testimonies which have confirmed what many already knew: that the notorious state-sponsored Al Badr and Al Shams militias affiliated with the Jamaat-i-Islami were empowered to indiscriminately and systematically murder and rape Bengalis with any connection to the movement for liberation.

It is another matter altogether that the tribunal has chosen to try only those associated with JI Bangladesh rather than risk diplomatic tensions by indicting Pakistanis (in khakis or otherwise).

The case of South Africa is also instructive inasmuch as a qualitatively different approach to justice was, and still is being, taken.

The crimes of the white-minority apartheid state are well-documented, yet the establishment of majority rule was not followed by any attempt to bring known racists to account for their crimes.

Instead the post-apartheid state chose to set up what was called the Truth and Reconciliation Commission (TRC) through which both victims and perpetrators of violence were brought face to face and ‘amnesty’ granted to many whites who acknowledged wrongdoing.

That South Africa has changed for the better following the end of apartheid is hardly disputable. But there are many blacks who never came to terms with the logic of the TRC and maintain that punitive justice is necessary if the horrors of white-minority rule are to be put to rest once and for all.

The recent demonstration of brutality by South African police against mostly black miners in which 34 of the latter were shot dead during a strike against inhuman working conditions reminded South Africans and the rest of the world that the structures of exclusion and exploitation established during the apartheid years remain intact and that reconciliation remains a pipe dream without the dismantling of these structures.

As I noted at the outset, an absolute standard of justice for all time and space is impossible, and can actually lead to decidedly unjust outcomes. But that justice is done, or at least seen to be done, is indispensable for societies that have been ravaged by (violent) conflict to emerge on the other side with hope for reconciliation.

This is not just a historical or academic question for Pakistanis today. We need to think hard about how to cope with the cauldron of hate that is Karachi where people are shot and killed only because they speak a particular language, sport a beard or wear particular kinds of clothes.

The situation in Balochistan is even more acute: if and when there is cessation of violence, how will those who have learnt to hate one another learn to trust instead? It is telling that there are already many who believe we have reached the point of no-return because ‘justice’ and ‘Pakistan’ simply cannot be reconciled.

These seemingly intractable questions become even more so with each passing day which is why the wrangling over ‘just’ punishments for prime ministers and presidents for not writing a letter to a foreign government appears so inconsequential.

It is, of course, not inconsequential insofar as its outcome will illuminate much about the future of elected rule in this country.

But it is nevertheless true that the cause of justice will hardly be strengthened if this or any other prime minister also goes the way of Mr Gilani.

In the real Pakistan, injustice and tyranny thrive not in spite of the formal juridical order but because of it.

I do not rule out the possibility that Pakistan’s long-suffering working people will benefit in the long run due to the increased assertiveness of the judicial arm of the state. But if this is the future it is contingent on ordinary Pakistanis turning the tables and adjudicating on the state.

The state and capital together have wreaked havoc on this and most post-colonial societies for hundreds of years. It is on this count that justice most desperately needs to be done.

The writer teaches at Quaid-i-Azam University, Islamabad.