In terms of our national consciousness three trends seem to be ascendant: we have lost faith in the ability of individuals to possess integrity or be guided by principles, firm in our conviction that human character is a commodity traded on fair market value; the doctrine of expediency and necessity are regaining ground as we crave out-of-the-ordinary responses to our problems on the alarmist basis that skies are about to cave in; and loath to invest in the building blocks of a functional state and society, the only solutions we are interested in are of the fire brigade variety that produce immediate results.
Kamran Faisal’s death is agonising because this is our David and Goliath story gone wrong. There is growing concern in Pakistan over the perceived battle underway between the strong and the weak, the haves and have-nots, the elites and the ordinary, compounded by the sense that the former might be winning.
There is no society that promises absolute equality. Even if an egalitarian society were to promise a level playing field, some will naturally do better than others. While the anger might be directed at the chasm that exists between the powerful and the weak, the rich and the poor, it emanates from the miserable treatment meted out to the weak, poor and ordinary by the rich and powerful.
Kamran Faisal is the symbol of the weak, poor and ordinary in this story and that is what makes his death most agonising. What kind of a state is ours where an officer of the state’s premier accountability agency backed by the power of the law and the authority of the state is the weakling in a contest with those he is meant to hold accountable? What we are witnessing is the unravelling of the state’s institutional authority and legitimacy.
And in this sense, Kamran Faisal’s death is not the first but the latest incident that only confirms a growing trend. It is no different from the slaughter of the 21 Levies officers at the hands of the Taliban or the slaughter of the SP and other police officers before that.
So are we descending into a state where the law of the jungle prevails? Police officers, NAB, tax officials etc – the repositories of the state’s police powers – harass ordinary people.
And then the extraordinary people who possess power springing from money or brute force in turn harass state functionaries? Do we now have a pecking order in which all power is personal and disjointed from institutional authority or the backing of law? Are we witnessing a breakdown of state authority because state functionaries have been rendered dysfunctional upon being caught between the rock and a hard place: the dictates of the law and the diktat of the powerful?
Or are we witnessing the collapse of social equilibrium because as individuals we have lost the ability to abide by principle? Consider a doctor who signs a post-mortem report without verifying its accuracy or, worse still, knowing full well that it is false.
Consider the police official who won’t register an FIR against the powerful or registers a fake FIR on behest of the powerful. Consider the bureaucrat who refuses to exercise his authority unless motivated by graft or the whims of a superior. Consider the politician who loathes the existence of turncoats in his party but holds his peace in order not to upset the party’s top leadership motivated by politics of power and expediency.
Consider the general who will not speak his mind because the reward of decades of dedicated service and whether or not he gets his third star or a plush post-retirement job depends entirely on the wishes of the army chief. Consider the judge who endorses the out-of-turn promotion of a junior judge to a senior position or adheres to the judicial opinion of the chief justice even when he disagrees with such administrative or judicial choice. Common in all of the above is the inability of individuals to stand up to do the right thing or abide by law backed by principle. There is no denying the problem. It is our choice of solutions that is vexing.
What do you do if people stop listening to the traffic constable who regulates traffic or if police officials performing watch and ward or investigation duties in police stations are not doing their jobs right? Do you bring in the inspector general police to issue traffic tickets or become the investigation officer (IO)? If that doesn’t work do you bring in the army to do the job of the police because the crime rates are escalating at an alarming level and extraordinary times demand extraordinary solutions? If that doesn’t work either, do you decide that it is best if the chief justice or the Supreme Court does what IOs are supposed to do in hundreds of police stations across Pakistan everyday?
There are at least three problems with the out-of-box solution of encouraging the judiciary to do what it is not supposed to. One, to paraphrase and distort Richard Dawkin’s term, it perpetuates the saviour delusion. It distorts the description, scope and gravity of problems confronting Pakistan and creates the false hope that one institution or individual can fix them all. Even with the best intentions, resolve, commitment and hard work, the SC and the CJ cannot step in to do the job of other institutions of the state. In our constitutional scheme of separation of powers not only does this amount to judicial overreach, it is also counterproductive.
This brings us to the second problem. Have we not already tried this one-size-fits-all solution and failed? Didn’t we bring the army in to run Wapda, clean canals, manage elections and dispense criminal justice, amongst other things? What these fire-fighting operations do is divert attention from required institutional reconstruction and reform. If an investigation officer has lost his integrity and functionality, the solution doesn’t lie in mandating two Supreme Court judges to carry out investigations in chosen cases. In order to stem the rot we need to go back to the drawing board and start rebuilding foundations of state authority and personal integrity as opposed to using quick-fix alternatives.
Most importantly, using the judiciary to run investigations and direct prosecution will sound the death-knell of due process in the adversarial common law based criminal justice system we have in place in Pakistan. Investigation, prosecution, courts and prisons are separate components of the criminal justice system that must all function separately for the criminal justice system to function as a whole. Using the SC as a three-in-one for investigation, prosecution and adjudication is against the due process guarantees of our constitution and a retrogressive troubling move.
Once the SC evaluates primary and secondary evidence – witnesses, post-mortem report, phone data, CCTV footage etc – and orders that a case be registered against certain persons, wouldn’t we have turned our highest appellate court into a trial court of first instance, convicted the accused without a trial and defeated their right to appeal? If investigators have no room to disagree with the views of the SC in suo motu cases, will a sessions judge dare? To ensure that no untoward pressure is brought to bear on investigators or prosecutors or that they exercise their authority within reasonable timeframes is one thing, to assume direct charge of an investigation and prosecution quite another.
How many murders can the SC investigate? Which lives ought to be deemed valuable enough to bring in SC judges as investigators? Can the SC inject personal integrity in state officials and average Pakistanis? What about the state of our ordinary courts that inspires no public confidence? Opting for arbitrary and populist responses to fight systemic malaise – crumbling state capacity and demise of personal integrity – will only further aggravate our miseries.
The writer is a lawyer based in Islamabad. Email: sattar@post.harvard.edu
Babar Sattar, "The saviour delusion," The News. 2013-01-27.Keywords: