Criminal injustice
Agha Faisal
Saturday, April 25, 2015

This year dawned with the 21st Amendment being blitzed by both houses of parliament at lightning speed. This amendment, piloted by the captains of the democratically elected legislature itself, achieved the judicial coup that General Musharraf’s emergency proclamation had failed to deliver back in November 2007.

Notwithstanding the adage that military law is to law what military music is to music, our military courts are now constitutionally empowered to try civilian citizens of Pakistan. The ostensible reason for this is the presumed failure of the criminal justice system of Pakistan.

The media is awash with not so subtle insinuations that the judiciary is responsible for the dismal conviction rate in Pakistan and equally blameworthy for not executing the few convictions that do actually take place. Worthy politicians thump their chests and bellow accusations that their functionaries risk life and limb to arrest criminals and the courts simply let them go.

Quite ironically it is the judiciary that ensures that the media is free to pursue any editorial bent it deems expedient. And it is also the judiciary that protects freedom of expression, even when that expression is targeted at the dignity of the judiciary itself.

Judges do not respond to media criticism, regardless of whether such criticism is personal or institutionalised. The judiciary cannot initiate a media campaign of its own to highlight its contributions and explain its shortcomings. The judiciary only speaks through its judgements and such judgements are thankfully predicated solely upon the evidence before the bench.

The criminal justice system in Pakistan is faltering because the state is unable to prosecute the alleged criminals within the confines of the law. The role of the state has been reduced to claiming that there was an encounter of biblical proportions, resulting in the apprehending of the devil himself. These alleged villains are then paraded before the media like a hunter displays his trophies. And that is where it all ends.

The case that is then filed against the paraded masqueraders is usually as airtight as a sieve during teatime. The provisions of the penal law that are applied are based on every consideration except the collected evidence of the crime – and that is assuming that there is evidence of the crime to begin with.

One glaring example of evidence collection is the assassination of former prime minister Benazir Bhutto. Immediately after the assassination the entire crime scene was literally washed by fire tenders, bowsers and water cannons. So whatever evidence was there must then have collected only in the depths of Nullah Leh.

There are literally no standards being enforced for the preservation of any evidence that is collected. Even explosives that are recovered are transported and stored in a manner that puts almost as many lives at risk as may have been intended by the perpetrator placing the explosives.

Witness protection is merely a concept. In reality identification parades are held in confined unpartitioned spaces, where whether a witness identifies a perpetrator or not is immaterial but the perpetrator certainly identifies his next victim.

A short discourse regarding contaminated evidence then leads me to the standards of prosecution employed by the state. The entire effort of the state is restricted to bluster and harangues with the sole intention of obtaining a confession since proving a crime is considered too tiresome.

The decision to prosecute or not to prosecute is taken mostly on considerations other than evidentiary. Even when the state is pursuing a case, quite often their prosecutors are blissfully unaware of even the facts of the case.

In such a scenario, what can we expect the courts to do? How can any court convict a person in the absence of evidence and cogent prosecution? Another issue is to examine what happens even when courts do convict.

It is the duty of the state to execute the convictions meted out by the courts but the same has not been done historically. The example of death sentences not being carried out is an extreme example, so let me present a simple one. There are numerous cases where bail has been denied to the accused even by the Supreme Court of Pakistan, however the same accused is released to prey upon society once again as the state grants him parole in perpetuity.

Then there is the institutionalised condonation of crimes. Much has been written and spoken about the National Reconciliation Ordinance – and yes it was rightfully struck down by the judiciary. But there is also another form of forgiving crimes when the perpetrators happen to have access to the right corridors of influence.

In a criminal trial it is the state that offers evidence and prosecutes. So what happens when the state refuses or fails to do so? It is not necessary for the state to enter the age old Latin plea of nolle prosequi, unwilling to pursue, anymore. The prosecution can simply ensure that the evidence presented is so scant or tainted that no reasonable court can order anything except an honourable acquittal.

Yes the criminal justice system in Pakistan is failing but it is only the judiciary that stands resolute, resuscitating the system time and again and preventing the descent into complete anarchy. Continuing down this path of deprecating the judiciary will only result in the substitution of rule of law with the sound of bagpipes.

The writer is a barrister-at-law.

Published in The News