Selective Justice serves no justice, rather it sponsors injustice.[1] It contradicts the principle of equality before the law and makes the application of the rule of law difficult. This impairs the efficiency of the criminal justice system as the provision of justice is incomplete without upholding the rule of law. The rule of law which enables the implementation of fair, just, and impartial laws is an essential component of a democratic state, and it ensures a safeguard against tyranny and selective justice.
Selective Justice in Pakistan
The founder of Pakistan, Muhammad Ali Jinnah, delivered a speech on 30 October 1947 on the importance of the rule of law in which he said ‘[t]he scrupulous maintenance and enforcement of law and order are the prerequisites of all progress.’[2] Today, the rich and powerful evade the rule of law giving rise to selective justice. Interference by the executive and legislative bodies in the working of the judiciary and politics in provincial bar associations also enable selective justice.
When Benazir Bhutto’s government was toppled in 1990, she filed a writ petition against the presidential order in which her government was dismissed.[3] The petition however, was turned down by the Supreme Court. In 1996, when her government was toppled again, she approached the Supreme Court[4] but the Court validated the dismissal of her government once again. In the case of Benazir Bhutto’s governments, the Court legitimated extra-constitutional actions[5]at the expense of the elected government, whereas, in Nawaz Sharif v. President of Pakistan[6] the Court reinstated Nawaz Sharif’s government and declared the dissolution of assembly illegal and unconstitutional. Several critiques have been made on how selective justice was at play here as the Courts failed to apply the same standards of justice while reviewing the orders.[7]
One example of how politics in bar associations hinders the provision of justice is the attack on the Punjab Institute of Cardiology (PIC) by a mob of angry lawyers in 2019.[8] The mob barged into the cardiac hospital, equipped with batons, to settle scores with medical staff they accused of beating up fellow lawyers. Reportedly, twenty-five doctors were injured, three deaths were reported, and hospital property was destroyed leading to an estimated loss of Rs70 million.[9]The Lahore police registered two cases on charges of violence and assault against 250 unidentified lawyers, including the presiding vice president, the general secretary and the presidential candidate of the Lahore Bar Association.[10] 80 lawyers were subsequently arrested and 46 were brought to an Anti-Terrorism Court (ATC) and later sent to jail on judicial remand.[11] Provincial bar councils called for a strike against the arrests and the Punjab Bar Council issued a warning to restrict the entry of police and government officials in court premises.[12] Lawyers also approached the Lahore High Court requesting the quashing of FIRs registered against the accused.[13] The Court disposed of the petitions seeking the release of the lawyers,[14] yet no judgement on the case has surfaced so far. Had the provincial bar councils not interfered in judicial proceedings and let the court give a fair verdict on the case, we would have witnessed justice prevail.
Another such example is of Rana Saeed, ex-vice president of Lahore Bar Association, and Asif Bashir Mirza, ex-president of Ferozwala Bar Association, who were accused of misbehaving and snatching court records from judicial officers.[15]The Lahore High Court suspended their licenses and referred their case to the disciplinary committee of the Punjab Bar Council. Contrary to the administrative order of the Lahore High Court, the disciplinary committee restored the licenses of the advocates.[16] These examples illustrate how the nexus between provincial bar councils and influential lawyers has brought the country’s criminal justice system to the verge of dysfunctionality. Lack of judicial independence and the practice of selective justice creates impediments in the provision of justice.
Last year while addressing the people of Isakhel, the Prime Minister of Pakistan, Imran Khan, said that a society with selective justice can’t survive.[17] Yet, the people of Pakistan have witnessed countless cases adjourned because of selective justice during his premiership. The political affiliations of offenders often make them less vulnerable to the investigative process and the media hype around certain criminal cases makes the investigative process an ordeal for law enforcement agencies and the judiciary. In the case of Usman Mirza,[18] who was exposed on social media for harassing a couple in a rental flat, the accused was allegedly not previously held accountable for illegal activities due to his political affiliation.[19]
Social media attention on a criminal case is another factor which may contribute towards selective justice because a layman with limited knowledge of the law does not understand the necessity of the right to a fair trial and due process in every criminal case. The recent Noor Mukadam case[20] exhibited this, as social media outcry demanded the public execution of Zahir Jaffer, the accused, and if not that, then the punishment of the death penalty or life imprisonment. The public did not consider the ‘right to fair trial or due process’[21] enshrined in the Constitution of Pakistan, rather they demanded that the Government of Pakistan take speedy and aggressive steps towards prosecuting the crime committed by the accused.
Cases reported in the media not only gain public attention, but also force law enforcement agencies to speed up their work in order to avoid negative press. State resources which should be equally apportioned for criminal cases are heavily allocated to cases which are in the limelight. This practice was recently condemned by the Lahore High Court in Yasir v. the State,[22] where the Court highlighted how the government provides disproportionately more resources to cases highlighted in the media. In another judgement by the Lahore High Court,[23] the Court emphasised that the right to a fair trial is not a qualified right, but an absolute right, so it need not be balanced against the rights of other individuals or public interest, nor is the right subject to any qualification. The criminal justice system should equally dispense justice in all criminal cases but when it prioritises one case over another, it gives rise to selective justice.
Selective Justice Internationally
Even international actors fail to comply with the principles of due process within the parameters of International Law and International Human Rights Law (IHRL). The execution of Saddam Hussein[24] when compared to the safe resignation of President Suharto[25] shows how selective justice is at play internationally. International politics may play a part in the inconsistent application of due process. The former US Secretary of State, Henry Kissinger’s involvement in the bombings of Cambodia and Laos amounted to war crimes under the Geneva Convention, yet he was never held accountable.[26] On the other hand, Charles Taylor, former President of Liberia, has been put on trial for his crimes against humanity.[27]
Although the International Criminal Court (ICC) was created to dispense effective, impartial and speedy justice, it goes against the principle of universal justice by selectively opening investigations, as illustrated by the following examples. The Uyghurs plea to the ICC to investigate crimes committed by China was rejected by the Court. The Uyghurs argued that the Court had the jurisdiction to act as Tajikistan and Cambodia are ICC signatories of the Rome Statute, but the Court held that it was unable to investigate the matter as China is not a signatory to the Statute.[28]
Another interesting case is that of Iran’s former President, Mahmoud Ahmadinejad, under whom ethnic minorities including the Kurds, Turkmen, Baluchis, and Ahwazi Arabs were persecuted, tortured and executed.[29] The ICC, however, has not opened an investigation against him. The ICC’s mandate is to deliver justice in war-torn countries and regions facing humanitarian crises around the world but, the practice of selective justice has undermined the very core goal of its creation. As selective justice continues to be institutionalised as a means of social control, the repercussion is the unmet ideal of justice. Selective justice obstructs the application of IHRL, as effective justice is not provided to victims of genocide, rape, torture and other crimes against humanity. Only by an equal application of international law could accountability in international justice be ensured.
Conclusion
Selective justice weakens the criminal justice system. It paves the way for the powerful and influential to get away with the crimes they commit. It also exacerbates the lack of confidence and trust the public has in the criminal justice system. Access to justice is a basic human right and integral to the rule of law, thus, must be ensured. In order to eradicate the practice of selective justice, governments should ensure effective application of human rights in their respective countries. The State is responsible to ensure that all citizens are treated as equal in the eyes of the law and no one is given preferential treatment over another. It is the combined duty of the government and the judiciary to ensure that every criminal case is investigated impartially, and the principles of due process are upheld at each stage of the criminal justice process.
References
[1] For the purpose of this article, selective justice is defined as the inconsistent application of legal due process.
[2] Irfan Mehmood, ‘Jinnah’s Vision of Pakistan – Blackstone School of Law & Business’ (Blackstone School of Law & Business, 2020) < https://www.bsolpk.org/legal-philosophy-history/2020/12/16/6yw2t8q7d0vrjdbnnw1fecja25p28x> accessed 19 September 2021.
[3] Khawaja Ahmad Tariq vs. Federation of Pakistan and others [1990] Lahore High Court, 505 PLD Lahore (Lahore High Court).
[4] Mohtarma Benazir Bhutto and another vs. President of Pakistan and others [1998] Supreme Court, 388 P L D (Supreme Court of Pakistan).
[5] For the purpose of this article, extra constitutional actions are defined as actions beyond the provisions of a constitution.
[6] Mian Muhammad Nawaz Sharif vs. President of Pakistan and others [1993] Supreme Court, 473 PLD (Supreme Court of Pakistan).
[7] Bakht Munir, Naveed Ahmad, Ali Nawaz Khan, ‘Judicial Activism, Selectivism, And Executive’s Functional Space: A Critical Appreciation In The Context Of Pakistan’ (2021) 58 (1) JRSP <4_58_1_21.pdf (pu.edu.pk)> accessed 19 September 2021.
[8] BBC News, ‘Pakistan protest: Patients die as lawyers ransack Lahore hospital’(2019) < Pakistan protest: Patients die as lawyers ransack Lahore hospital – BBC News> accessed 7 October 2021.
[9] Pakistan Today, ‘Lawyers, police held responsible in PIC attack inquiry report’ (2020) <Lawyers, police held responsible in PIC attack inquiry report | Pakistan Today> accessed 7 October 2021.
[10] Shahab Omer, ‘250 Lawyers Booked Over PIC Rampage’ Pakistan Today (2019) <http://250 lawyers booked over PIC rampage | Pakistan Today> accessed 7 October 2021.
[11] Raja Riaz, ‘Hospital Assault In Lahore: 46 Lawyers Sent On Judicial Remand’ Arab News (2019) <http://Hospital assault in Lahore: 46 lawyers sent on judicial remand (arabnews.pk)> accessed 7 October 2021.
[12] Pakistan Today, ‘PBC Continues Strike Over Arrest Of PIC Rioters’ (2019) <https://archive.pakistantoday.com.pk/2019/12/16/pbc-continues-strike-over-arrest-of-lawyers-involved-in-pic-rampage/> accessed 7 October 2021.
[13] Pakistan Observer ‘Selective Justice is not Justice’ (2019) <https://pakobserver.net/selective-justice-is-injustice/> accessed 19 September 2021.
[14] Rana Yasif, ‘LHC disposes off petitions seeking release of lawyers detained after PIC attack’ The Express Tribune (2019) <LHC disposes off petitions seeking release of lawyers detained after PIC attack (tribune.com.pk)> accessed 7 October 2021.
[15] Hasnaat Malik, ‘No holds barred: Popular politics precedes bars’ regulatory role’ The Express Tribune (2019) <No holds barred: Popular politics precedes bars’ regulatory role (tribune.com.pk)> accessed 7 October 2021.
[16] ibid.
[17] Khurshid Anwar Khan, ‘Society with selective justice can’t survive, says PM’ DAWN (2020) <https://www.dawn.com/news/1586899> accessed 19 September 2021.
[18] Malik Asad, ‘14 suspects involved in couple sexual harassment case, court told’ DAWN (2021) <https://www.dawn.com/news/1634994> accessed 19 September 2021.
[19] Pakistan Frontier, ‘Usman Mirza had PML-N affiliation that supported him to continue illegal activities’ (2021) <https://pakistanfrontier.com/2021/07/11/usman-mirza-had-pml-n-affiliation-that-supported-him-to-continue-illegal-activities/> accessed 19 September 2021.
[20] DAWN, ‘Everything you need to know about the Noor Mukadam murder case so far’ (2021) <https://www.dawn.com/news/1647623> accessed 22 September 2021.
[21] Article 10 – A provides for the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.
[22] Yasir vs The State and another [2021] Lahore High Court, Crl Misc No43708-B/2021 (Lahore High Court).
[23] Amar Jeet Singh v. Sant Singh [2021] Lahore High Court, C.R. No. 22983/2021 (Lahore High Court).
[24] ‘Iraq: Saddam Hussein put to death’ Human Rights Watch (2006) <https://www.hrw.org/news/2006/12/29/iraq-saddam-hussein-put-death> accessed 21 September 2021.
[25] Edith Koesoemawiria, ‘Indonesia’s history of othering’ (Development And Cooperation, 28 July 2021) <https://www.dandc.eu/en/article/suhartos-authoritarian-rule-made-life-hard-indonesias-ethnic-chinese> accessed 21 September 2021.
[26] Michael R. Galant, ‘Welcoming War Crimes: The Normalization of Henry Kissinger’ (The Harvard Crimson, 31 January 2017) < https://www.thecrimson.com/article/2017/1/31/galant-welcoming-war-crimes/> accessed 22 September 2021.
[27] ‘International Justice: Taylor Trial Sets Positive Example’ Human Rights Watch (2012) <International Justice: Taylor Trial Sets Positive Example | Human Rights Watch (hrw.org)> accessed 7 October 2021.
[28] ‘ICC rejects Uighur plea for investigation of China’ VOA News (2020) <https://www.voanews.com/a/east-asia-pacific_voa-news-china_icc-rejects-uighur-plea-investigation-china/6199574.html> accessed 22 September 2021.
[29] ‘UN: Hold Ahmadinejad Accountable For Iran Rights Crises’ Human Rights Watch (2008) <https://www.hrw.org/news/2008/09/17/un-hold-ahmadinejad-accountable-iran-rights-crisis> accessed 22 September 2021.
