In a 1990 Tanner Lecture, Umberto Eco talked about modus, the boundary. But he also spoke about modus as being moderate—“that is, within limits and within measure.” He quoted Horace as saying: “There is a measure for everything. There are precise limits one cannot cross.”
Sacked judge Justice Shaukat Aziz Siddiqui’s case is precisely the opposite of what Eco’s Horation principle is. And not just in what or who Siddiqui was, but also in relation to the institutional and political chaos that has come to define Pakistan.
But first a quick recap. Siddiqui, the senior puisne judge of the Islamabad High Court, spoke at a function of the Rawalpindi District Bar. In that speech he not only alleged that the Inter-Services Intelligence was seeking to influence court decisions in cases against the former prime minister, Mian Nawaz Sharif, his daughter Maryam Safdar, and her husband, Capt. Safdar (retd.), but also remarked about some judges of the Supreme Court as mounting a judicial coup against Sharif and the Pakistan Muslim League (Nawaz).
The speech begot an immediate reaction from the Inter-Services Public Relations which issued a press release, noting that “In order to safeguard the sanctity and credibility of the state institutions, [the] Honorable Supreme Court of Pakistan has been requested to initiate the appropriate process to ascertain the veracity of the allegations and take actions [sic] accordingly.” The “has been requested” sentence should have read: “the Army has requested the SCP to initiate the appropriate process…”
Siddiqui’s speech and the ISPR reaction set in motion a chain of events, culminating last week in Siddiqui’s sacking. Following its proceedings, the Supreme Judicial Council, under Article 209 of the Constitution, decided that “in the matter of making his speech before the District Bar Association, Rawalpindi, on July 21, 2018, Mr. Justice Shaukat Aziz Siddiqui, Judge Islamabad High Court, had displayed conduct unbecoming of Judge of a High Court and was, thus, guilty of misconduct and he is, therefore, liable to be removed from his office under Article 209(6) of the Constitution of the Islamic Republic of Pakistan, 1973.”
That ends Siddiqui’s career on the bench. Every citizen who believes in inclusiveness, and can clearly see the terrible scars this state and society bears because of the violence generated by sectarian and denominational bigotry, should be happy that Siddiqui is history. He was loathed for being the darling of religious fanatics and displayed, while he sat on the bench, an approach that was unbecoming of a judge of a superior court.
His decisions incited hatred, gave fillip to the pursuers of the blasphemy agenda and generally reeked of interpretative charlatanism.
He should not be missed.
Yet, such is the nature of this state, such the political and ideological polarization and the workings of some of its institutions, that the removal of someone as forgettable as Siddiqui continues to raise questions. Consider.
There’s ample evidence that Panama Papers provided the establishment an opportunity to get rid of Sharif and, by extension, his party. There’s ample evidence also that Sharif decided to fight back. This begot us a lot of selective muck on social media with PMLN digital warriors pitted against the establishment and Pakistan Tehreek-e-Insaf warriors.
There were and are questions about the formation of the JIT, the conduct of the highest court, the manner in which the Accountability Court produced a poor decision posthaste, and now the fate of that decision by a two-member bench of the Islamabad High Court.
Siddiqui is already being hailed as a martyr to the cause—democracy, if you will, which is now spelled PMLN—by supporters of the PMLN as well as Siddiqui’s rightwing cavalry.
Siddiqui was a populist. His obiter dicta in the court, as also his decisions, make that amply clear. But this has unfortunately become usual. If we were to hold his populism to account, we will also have to speak of other judges that have fallen to the lure of vox populi. He showed a penchant for interpreting the law in line with his ideological biases. Again, in that he wasn’t alone.
Yet, it is instructive to note that the day he made that speech before the district bar, many a WhatsApp group exchange had one refrain: Siddiqui is toast. And when the ISPR weighed in on the matter, Siddiqui’s fate as a judge was sealed.
The SJC decision notes the excessive, populist and perhaps partisan nature of his comments. It also dealt at length with the issue of open versus in-camera trial, settling for the latter as being one of the paths taken and noting that the antithesis of open is a secret, not an in-camera trial. Its judgment also noted that Siddiqui did not have any solid evidence to back up his allegations and also failed to report the matter when he was approached by a colonel, as alleged by him… et cetera et cetera.
Be that as it may, and regardless of the veracity of Siddiqui’s allegations or the justice of the SJC proceedings, we have a bigger problem and that pertains to Eco’s discussion of the modus: we are routinely overstepping and undermining the modus.
But there are reasons for this anomalous behavior. When we overstep once, we rig the system. Rules and boundaries are important precisely for preventing the Original Sin. Elsewhere in his lecture Eco cites the murder by Romulus of his brother: “The Latin obsession with spatial limits goes right back to the legend of the foundation of Rome: Romulus draws a boundary line and kills his brother for failing to respect it. If boundaries are not recognized, then there can be no civitas.”
Put differently, our disregard for the modus means we have no confidence in the institutions, their interplay, the justice system, the process of accountability. On every issue, given this lack of confidence, we take the only path available to us, snuggling in the wombed safety of our partisan perceptions.
It doesn’t require a puissant capability to figure out that that is not a particularly good place to be in. It should, therefore, not come as a big surprise that Siddiqui’s sacking, a judge who never covered himself in glory except for the shrieking rightwing mobs, should bring into sharp salience the nature of this state and the many contradictions and convolutions that have come to define it.
A man who should have been long removed from the bench for his diabolical decisions and also, by some accounts, his abuse of power but could not because a number of constitutional provisions supported his personal and populist bigotry, finally got into the military’s crosshairs.
We are already suffering the consequences of the idea of sacralizing some institutions by stonewalling critique as treasonous and an attempt to bring the institutions in ‘disrepute.’ That is pure poppycock, of course, but it is unfortunately the standard line.
There’s now a question mark over how the courts approach certain issues. Recently, in a zinger penned by Babar Sattar, he quoted Lord Denning as saying: “…justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: ‘the judge was biased.’”
Siddiqui was a terrible judge. No one will, or should, mourn his departure. But that does not, in and of itself, mean that we can, or should, ignore the idea of the modus.
Haider is the executive editor at Indus News. He was a Ford Scholar at the Program in Arms Control, Disarmament and International Security at the University of Illinois at Urbana-Champaign, and a visiting fellow at the Brookings Institution, Washington, D.C. He tweets @ejazhaider