By Humayun Gauhar
I talked of seven pillars or cornerstones of justice last Sunday but left out three of the most important for want of space. These are: due process, presumption of innocence, and absence of emotion, making ten pillars in all.
Due process is a fundamental right that includes the right to defence, the right to call witnesses in one’s defence, the right to cross-examine witnesses and the right of appeal. As officers of the court lawyers should know. Yet, amazingly, lawyers, not rabble rousers, screamed at Aitizaz Ahsan for taking the prime minister’s case and Asma Jehangir of Hussain Haqqani. Don’t they have the right to defend themselves? Methinks that in Pakistan lawyers and rabble-rouser are two names for the same profession. If Hitler had been arrested the same rights of due process would have come into play for him as for you and me. What America is doing in Guantanamo and its other concentration camps is an abomination to due process.
So important is due process that even the Almighty deems it necessary to demonstrate that none shall be punished without calling witnesses. Why would God need to do this? Because He wants to impress upon us the importance of due process, so important that even He who knows everything also follows it to satisfy every being that justice has been done to them and they have not been wrongly punished.
“That Day shall We set a seal on their mouths. But their hands will speak To Us, and their feet bear witness, to all that they did.” (Al Quran: XXXVI 65).
“Till, when they reach it (Hell-fire), their hearing (ears) and their eyes, and their skins will testify against them as to what they used to do.” (Al Quran: XLI 20).
God’s witnesses are our skins, hands and feet, our eyes and ears. Frightened? Don’t be, for God is Most Merciful, Most Beneficent. He will be Merciful to us for failing to discharge our duties towards Him – Haqooq Allah – but failing in our duties towards His creations – Haqooq ul Ibad – is another matter. If you are of the An al Haq school of thought like Mansour Hallaj, then you will wonder what this Judgment Day is all about for “I am the Truth” – ‘Hairan hoon phir yeh mushahida hai kis liyay’ – “What is this observation for?” But that will take to me to a whole new realm best left to another time.
Why would human judges sometimes overlook due process? Far be it for me to even suggest that they don’t fear God. Dare I humbly suggest that it could possibly be because of lack of understanding and surfeit of self-importance? They should remember that on the Day of Judgment they would not go to God’s presence in shameful motorcades, sirens blazing, strobe lights flashing.
Presumption of innocence and due process go together. The onus of proof lies on the prosecution, not on the accused. The accused does not have to prove his innocence; rather, those accusing him have to prove his guilt, something that was shamefully overlooked by our National Accountability Bureau initially. The rationale is that it is better to let many go free rather than unjustly punish even one. The enormity of this gets driven home in the case of capital punishment: if you hang one innocent person and later discover that he was innocent, is there any way you can bring him back to life and undo the injustice done to him? If the Supreme Court finds that there was a miscarriage of justice in Mr. Bhutto’s case, who will undo the wrong done him, who will bring him back to life and give him back the 32 years he has spent in the grave?
Even someone unjustly deprived of liberty or reputation cannot be adequately compensated. How do you place a value on life and liberty or any stigma caused by an unfair loss of reputation? That stigma is not only on the person unjustly defamed but on his entire family, which is injustice compounded. In Islam it is the duty of the leader and the state to protect the dignity and reputation of its citizens and their families. Not only do our leaders and state woefully fail in this duty, our media flout it daily with great abandon, but neither our state nor our judiciary take a wit of notice, suo moto forsooth.
Absence of emotion means: don’t hate anyone so much that it prevents you from doing them justice. Nor does it give you the right to take away their right to defend themselves. You, I and the lawyers have the right to accuse anyone provided we have evidence that will stand up in a proper court of law.
“O you who believe, stand out firmly for God, as witnesses to fair dealing and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just; justice is next to piety.” (V: 9). Naturally, let not your hatred of others prevent you from doing them justice.
“O you who believe, stand out firmly for justice as witnesses to God, even as against yourselves, or your parents, or your kith and kin and whether it be against rich or poor for God can protect both. Follow not the lusts of your hearts lest you swerve and if you distort justice or decline to do justice, verily God is well-acquainted with all that your do.” (IV: 135).
Since most of us are Muslims by accident of birth and take our faith for granted believing what our elders, teachers and clerics tell us while few are Muslims by conviction that comes only from knowledge and understanding, and we have chosen to call our Pakistan an ‘Islamic Republic’, it is useful to remember periodically some of what else God has said about justice and how important it is.
“God commands that when you judge between man and man, judge with justice.” (IV: 135). The word ‘man’ throughout does not refer only to the male gender but to all genders. ‘Man’ is generic for human beings.
“Allah has sent down the Book in truth so that you might judge between men as guided by God.” (IV: 105). Now ‘in truth’ is most interesting, because if the translator has used the word ‘truth’ for ‘Haq’, it takes on a wholly different dimension. But he has not used a capital ‘T’ for it, so perhaps it doesn’t mean ‘Haq’. Why don’t you think about it? Let me just say that ‘Haq’ has different meanings: it is one of God’s names; it means the Truth; it means rights, duties and obligations, as in Haqooq ul Ibad and Haqooq Allah.
“Allah has set up the balance of Justice; so establish justice and fall not short in the balance.” (LV: 7-9). Again, capital ‘J’ for God’s Justice and a small one for man’s justice.
“Allah sent aforetime His Prophets with clear signs and sent down with them the Book and the Balance that men stand forth in Justice.” (LVII: 25).
“We sent down with Our Apostle the Balance of Justice, so that man may stand forth in justice.” (LVII: 25).
There is balance everywhere, in everything. Any wonder that the symbol of temporal justice is a blindfolded lady holding balanced scales, to show that justice is unbiased and evenhanded. Balance is Adl, more than simply justice, though justice is a very important element of balance. If there were no balance in mass, weight, velocity, temperatures, distances, speeds of expansion and God alone knows what else, the universe would collapse. There is balance at quantum levels too. Thus Man is enjoined to maintain balance in his life and in society. An unbalanced society is absence of Adl, where there is no egalitarianism, no distributive justice and vast differences in wealth, power and influence. Absence of Adl means absence of Islam – Peace – God’s Islam, not the cleric’s religions. God help us.