We have a history of taking temporary fixing measures but never focus on taking cogent steps that can permanently reform our flawed criminal justice system.
The tragic rape and murder of a minor girl, Zainab, has again kicked up a public debate on the mode of punishment. If we recall, Pakistan has been facing extraordinary circumstances since the 70s, when different governments introduced parallel judicial systems. But no government has so far been successful in reforming the criminal justice system (CJS).
Examples of temporary measures being taken can be traced back to our recent past. In 1998, when civil order in Karachi was in decline, military courts were introduced for the first time to try civilians. The law was introduced after the president had promulgated the Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance 1998, under Article 245 of the Constitution. The government at that time had argued that the law has been put in place for a short period of time and is for a specific area with the objective to restore security and peace and maintenance of law and order. The law was later repealed because it was declared arbitrary to the constitution by the Supreme Court of Pakistan in the case reported as ‘Liaquat Hussain versus Federation of Pakistan’. At that time too the federal government maintained that it was forced to take these extraordinary steps to secure peace. But it never gave due attention to reforming the outdated CJS.
Similarly, on January 7th 2015, after the Army Public School incident, parliament unanimously allowed military courts to hold trials of terrorism suspects, by introducing changes to the Pakistan Army Act 1952 through the 21st Constitutional Amendment. Again it was said that the promulgation is temporary as it has a sunset clause of two years. However, it was later extended for another two years. And this time too the objectives were to carry out speedy trials and curtailment of terrorist activities in the extraordinary situation the country was facing.
At the time it was assumed that ordinary courts were not in the position to cope with the challenges. Hence, the government promised to reform the criminal justice system and ensure speedy and affordable justice for all. Now the military courts are in their fourth and final year. But have any reforms been introduced in the centuries-old law and justice system? The day is not far when people will ask military courts to also settle their fiscal and property disputes. Why have people been forced into believing that they cannot get justice form ordinary courts?
We have a history of taking temporary measures to deal with the long-standing problems plaguing our criminal justice system. But still we never bother to search for permanent solutions and introduce workable reforms in our judicial system. Similarly, there is no evidence that public executions or even sending people to the gallows has ever deterred criminals, but what is certain is that it could further encourage the desire for vengeance and violence in society.
After APS, the moratorium on the death penalty was lifted; at least 487 people have been executed since then. Even those who believe in the philosophy of deterrence would agree that the crime ratio in the county has not come down. The people need to know why there has been such a delay in reforming the CJS? Why do we have the lowest conviction rate in ordinary criminal cases? Why are cases tried for decades, while people remain confined in pre-trial detentions?
We, the public, should also rethink our criticism about the police being the only institution responsible for all the weaknesses in the criminal justice system. Why do we forget the systems of prosecution, parole, prison probation and the judiciary? There may be a few steps the government took to reform the police department, but it seems it has done nothing practical to reform other important departments.
The political pressure and public opinion calling for prompt action in punishment for the Zainab case cannot be ignored, especially when the Senate’s Standing Committee on Interior suggests amending Section 364A of the Pakistan Penal Code (PPC) to include the terms ‘public hanging’ in the clause. How about we ask this committee, parliament and the government how much they have done to reform the criminal justice system – as they had promised to do after the APS incident? Because it is a universal truth that our people want affordable, fast and accessible justice and that our existing criminal justice system is flawed and needs reforms. The government needs to take concrete steps to improve the implementation mechanism of existing laws and reform the the justice system.
Will public hangings deter criminals? Or will a reformed criminal justice system, with modern forensics, updated means of investigation, trained prosecution officers and an improved judicial system ensure our safety?
Laws, rules, and regulations should be adopted in order to strengthen the processes of investigation and prosecution. Protection should be provided for witnesses, lawyers and judges of the existing regular criminal courts. Restoration of public hangings should not be a priority, instead practical, durable and everlasting reforms in the criminal justice system are what will benefit the whole country.
If this same committee, parliament and government wish to change the justice system, they can bring reforms within days. We need a collective effort and not temporary, fatal and outdated decisions. Parliament should soon take durable steps to ensure justice is provided to all and the government should ensure that rule of law prevails.
The writer is a Peshawar-based lawyer.
Email: irshadahmadadvocate gmail.com