Regressive bail laws

July 13,2017

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In May this year, a trial court once again denied bail to a 16-year-old Christian boy accused of committing blasphemy by “liking” a post on social media. According to the judge, the boy’s bail application was rejected because he was accused of a “heinous and odious act by defiling the religious feelings of Muslims and their holy place of worship”, and factors such as his age and no prior convictions were deemed irrelevant to his bail application. He has now been in pre-trial detention for nearly one year.

This case highlights a number of problems with Pakistan’s laws on bail, which are further compounded in cases involving blasphemy offences, where charges are often fabricated. In more than 90 percent cases, courts go on to eventually acquit the accused, but not before they have had their reputations damaged, their lives deeply disrupted, and precious years lost.

Criminal offences in Pakistan are divided into two categories: bailable and non-bailable offences. For bailable offences, bail is an accused person’s right, whereas in non-bailable cases, bail may only be granted at the discretion of the court.

Why certain offences in Pakistan’s Penal Code are “bailable” or “non-bailable” appears arbitrary: for example, kidnapping, assault, and unintentional murder are bailable, whereas most blasphemy-related offences such as hurting religious sentiment, misusing religious epithets and defaming the Prophet Muhammad (pbuh) are non-bailable.

For non-bailable offences, section 497 of the Code of Criminal Procedure (CrPC) provides that the accused shall not be given bail if there are “reasonable grounds for believing” that they are “guilty of an offence punishable with death, imprisonment for life or imprisonment for ten years.” This provision of the law applies to most blasphemy-related offences as they are non-bailable and also carry sentences ranging from ten years imprisonment to the death penalty.

Section 497 of the CrPC appears incompatible with the right to a fair trial and the right to liberty, guaranteed both under Pakistan’s constitution and treaties to which Pakistan is a party including the International Covenant on Civil and Political Rights (ICCPR).

Interpreting the right to a fair trial in Pakistani law, the Supreme Court has held that the intention of the legislature was to “give it the same meaning as is broadly universally recognized and embedded in our own jurisprudence”.

Under international law, bail should presumptively be granted and pre-trial detention should be the exception, reserved only for situations where the likelihood exists that the accused would abscond or destroy evidence, influence witnesses, or flee from the jurisdiction of the state. Detention prior to trial is therefore conceived not as punishment, but as a preventative measure aimed at averting obstruction of justice or (further) harm.

Section 497 of the CrPC, however, makes courts’ exercise of their decision to grant bail contingent upon the “tentative guilt” of the accused. What this essentially means is that even before the actual trial, courts are expected to make a determination as to whether or not the accused has committed the offence without granting the accused full rights to present a defence.

Decisions as to whether to grant or deny bail or on imposing bail conditions are – and must remain – unrelated to questions of guilt or innocence. To deny bail on untested suppositions of guilt undermines the principle of presumption of innocence, since it effectively applies a punitive sanction (pre-trial detention) in response a court’s pre–judgment in the absence of an actual trial.

Pakistani law also provides the option of “statutory bail” where the accused is in detention pending trial for a continuous period of two years (one year for women) for crimes that carry the death penalty, and one year (six months for women) where the offence carries penalties less than death.

An analysis of jurisprudence on bail in blasphemy cases shows that even where suspects are entitled to statutory bail, judges often reject their applications, particularly where they are charged under section 295-C of the PPC (defamation of the Holy Prophet [pbuh]). In many instances, judges consider the accused persons and their counsel responsible for the delay in proceedings, and are unsympathetic towards the security risks or other hardships faced by the accused or their counsel that may have contributed partly to the delay.

Additionally, in some cases courts have refused to grant bail in blasphemy cases ostensibly to ensure the security of the accused. In one case, a trial court refused an application for bail stating if the accused is released, “that would not only cause disturbance to the public peace but would also endanger the life of the accused due to the mental attachment of society with Almighty Allah.” In another, the Peshawar High Court refused bail including on the ground that after his release, the accused “might be hurt by someone”, a judgment that was later also endorsed by the Supreme Court.

While it is true that mere allegations of blasphemy in Pakistan have in the past led to attacks against the accused, there is no provision in the law that gives courts the authority to refuse bail on this ground. The decision of whether or not to apply for bail rests with the accused alone – the courts cannot make this choice by overriding the accused’s decision for “their own safety”.

Denying bail to people accused of blasphemy “for their own safety” has a perverse logic: while it is commendable that courts recognise the risks faced by those accused of blasphemy, their response only serves as a continuation of persecution, resulting in further violations of rights.

The blasphemy laws in Pakistan are grossly misused. The prolonged agony of the process, including many years in pre-trial detention, is yet another aspect of the basic injustice faced by the accused.

It is imperative, therefore, that all blasphemy-related offences must be made bailable. In addition, Pakistan must also review its laws on bail and ensure their compatibility with international standards on the right to liberty and fair trial.

The writer is a legal adviser for the International Commission of Jurists. Email: reema.omericj.org Twitter: reema_omer

The writer is a legal adviser for the International Commission of Jurists.

Email: reema.omericj.org

Twitter: reema_omer


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