ARRESTS; rearrests; denial of bails; surfacing of new FIRs once bail is granted; trials behind closed doors with the die already cast. None of this is new, or even exclusive to Pakistan.

Formally, the judicial system remains intact: the robed honourable judges still show up in court. Lawyers still get to make a few noises, smug in their delusion that their word may carry the day.

Nonetheless, there has been an overwhelming attrition of faith in the courts. The bulk of the blame has been put on the judiciary, that the judges, with the prefix ‘honourable’, were supposed to be the custodians of the people’s rights. That they were to intervene, ensure protection, and stand between the wrath of the state and the people.

Such a huge ask from the judiciary was never realistic, and not even fair. First, the past has been one where precedents of capitulation exist in huge numbers, making it the norm, rather than an aberration. Second, judges, just like ourselves, are mere mortals, driven by ambitions, desires and fears. Only one of these things needs to be capitalised on. Third, and importantly, judges come from within the society they live in, and are not divorced from the ideas and ideals percolating in it.

Without the right ideals, it is hard to prop up the law.

And it is not only about the judges. In fact, the law — its promulgation, interpretation and enforcement — remains contingent on the beliefs, ideas and narratives that have traction in society at large. One way to think about the law is that it remains strongly tethered to the mainstream notions of the populace.

Put differently, the law in a particular society can bear just as much burden or strain as the popular, prevalent ideas in that society allow it to bear. Especially so, in the context where expectations from the law and those who dabble in it — such as legislators, judges and the executive — is to serve as a protective mechanism both from the state itself, and all those, including private segments, who wield disproportionate power.

Take the example of domestic violence — an example from our ordinary lives, and not from politics. Laws may be in the books, police in the field (when not lined up to provide protocol to office holders), and the honourables in the courts. Yet, because of the idea of privacy of a household, that whatever happens in a home belongs in the private domain, the forceful subjugation of women has continued unabated. Despite the law’s existence and despite the existence of the machinery of the law, instances of domestic violence are rampant.

Similarly, the Constitution says glorious things about fundamental freedoms. You and I, by virtue of being persons and citizens, are free to associate; free to assemble; free to think and say as we please. But then, not really. Free speech is a value we have failed to engender in our society. Muzzling voices at home, in schools and in universities, produces very few mavericks, and many, far too many, conformists.

And when those who can come after political parties — even the ones they manufactured — and put political actors behind bars, we, the stunted of society, passively accept it. We know no other way. For our entire lives we have seen that those with relative power are going to abuse it unchallenged. This happens at all levels — in our villages, in the cities, in the panchayats, and in corporate boardrooms. Without the right ideals, it is hard to prop up the law.

Therefore, it is not sufficient to accuse and blame the law, that it has not been promulgated right, that only if the text said something else. And it is not enough to blame the robed, the honourables, the mere flesh and bones, with pretensions of being saviours. In fact, we have to look deeper into our everyday practices, into the things we are taught at school and in our homes, in our everyday conversations and our thoughts. Have we, in our everyday lives, allowed people such as our spouses, our colleagues, our friends and our fellow citizens, to flourish? Have we given people respect irrespective of their family background, caste, and class? Have we produced an environment where our children can experiment with non-conventional thoughts, and, at least, harbour and express them, despite our convictions of them being wrong?

Why then put the burden on the law, an artificial construct, when our lived experiences are a continuous testament and reflection of exactly the things that are then projected broadly in society?

Yes, the law’s impotence has to do with the deficiencies in our governance and judicial structures. But it has more do with the absence of ideals in our society.

The writer is a lawyer based in Islamabad.

awahid@umich.edu

Published in Dawn, December 13th, 2023