.. by Barrister Asad Ul Mulk
“‘IN the little world in which children have their existence,’ says Pip in Charles Dickens’ Great Expectations, ‘there is nothing so finely perceived and finely felt, as injustice.’ I expect Pip is right: he vividly recollects after his humiliating encounter with Estella the ‘capricious and violent coercion’ he suffers as a child at the hands of his own sister. But the strong perception of manifest injustice applies to adult human beings as well. What moves us, reasonably enough, is not the realisation that the world falls short of being completely just — which few of us expect — but that there are clearly remedial injustices around us which we want to eliminate.” It is in those words that Amartya Sen confronts us with the limitation of ‘transcendental justice’ in his celebrated book The Idea of Justice.
Transcendental justice solicits the question: what would the perfect form of justice look like? As a corollary, the ascertainment of ideal standards, and the incorporation of immaculate institutions becomes indispensable. This enterprise is as fantastic as the “original position” and the “veil of ignorance” conceived by John Rawls in his magnum opus A Theory of Justice. In ways more than one, the judicature in Pakistan subscribes to the concept of ‘transcendental justice’. In the context of litigation, such subscription gives rise to questions such as: was the grievance instituted before the correct forum? Was a proper invitation to participate in legal proceedings extended? Were the pleas taken at the right stage, in the right form? Was a right to defence offered? Were the witnesses allowed to be cross examined? Was an opportunity of personal hearing afforded? Were findings given on each issue? Is the order a speaking one? Was the law correctly applied?
Such postulates of justice are grounded in statutory and case law. Most judges in Pakistan carry a clear conscience, for they adjudicate upon cases before them according to the law, without partiality or preference. Yet the public, who is the subject of the law and its justice, holds an appalling opinion of both, and those who administer them. Despite all the rigours and safeguards the law provides, the real truth is seldom reached. If it is, it is at an astronomical price.
Litigation is often generational; it causes people to dig deep into their pockets, requires constant attention, engenders mental agony, is marred by technicalities, is prone to abuse and susceptible to exploitation. When the Government of India Act, 1935, was promulgated, Jawaharlal Nehru termed it “a new charter of bondage”, describing it as “a machinery with very strong brakes but no engine”. The same can be said of Pakistan’s laws and the judicature that administers it.
What would the perfect form of justice look like?
What is needed in place of ‘transcendental justice’ is ‘realisation-focused comparative justice’. Thus, instead of asking what the perfect form of justice would look like, the question should be: which of these alternative forms of justice is preferable? Delay, costs, the overtly technical nature of proceedings and lack of accountability for abuse of the legal system are amongst the cardinal reasons why the public has little faith in the judiciary.
A ‘realisation-focused’ approach to justice would commend relaxing some high ideals and admitting less perfection in institutions, so long as this reworking is effective at removing manifest injustices like the one Pip notices, akin to the cardinal reasons mentioned. Affording an opportunity of hearing in a claim or defence is an ideal worthy of protection. In Pakistan, this ideal is grounded in Article 10-A of the Constitution, which guarantees the right to a fair trial. Thus each claim or defence is to be adjudged on its own merit.
Conversely, in the UK, under Rule 3.11 of the Civil Procedure Rules and Practice Direction 3C, of which there is no equivalent in Pakistan, the court can issue various kinds of ‘civil restraint orders’ and prevent persons who have previously filed frivolous or vexatious cases or applications, from putting in further ones. This approach, although less ideal and less liberal, still represents the correct approach, because justice should not just be about legitimacy, but also about outcomes.
As jurists, Solon, Ali ibn Abi Talib, Henry-de-Bracton and Thomas Becket, followed procedures apparently far less complex and ideal than those prevalent today, but their judgements were seen as ‘just’ owing to the socially desirable outcomes that ensued. How many cases were instituted, disposed, decided or remanded? These are important statistics, but they cannot be the measure of the justice of the legal system. For that is more aptly solicited by the non-transcendental question: how much faith does the public have in the judicature?
.. 06 Feb 2026. The writer is a practicing barrister. [email protected]
.. Source