Whither due process?

December 11, 2019

Ali Gibran *** Zaineb MajokaPakistan’s constitution ensures the rights to fair trial and due process through Article 10 and 10a. Any order or action by the government that contravenes these...

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Ali Gibran *** Zaineb Majoka

Pakistan’s constitution ensures the rights to fair trial and due process through Article 10 and 10a. Any order or action by the government that contravenes these rights can be deemed null and void.

Pakistan’s justice system has failed time and again in following this due process particularly when blasphemy accusations are involved. The police often fail to protect the accused or their families against mob violence. In such circumstances, it is little wonder that the accused are targeted even before the case is formally registered; this takes the form of attacks on homes or communities, or mob lynching.

The lack of adherence to due process is particularly prominent in the case of Junaid Hafeez, who has been in solitary confinement for the past six years. Due process was violated at every stage of his trial: discrepancies in witness accounts, shoddy handling of investigation, denied bail leading to extended period of time in confinement, limited legal support, intimidating atmosphere for the judge as well as the lawyer (his first lawyer Rashed Rehman was killed), violation of the right to a public hearing, and lack of access to effective defence.

Unfortunately, Junaid is not the only victim of a broken justice system. In 2018, Aasia Bibi was finally acquitted after spending almost ten years in jail. Earlier this year, Wajih-ul-Hasan was exonerated of blasphemy charges due to the inability of the prosecution to prove him guilty beyond a reasonable doubt – but he had been in prison for 18 years.

These are just two examples, but the blasphemy laws are often used to target minorities or dissenters. At least, 1,472 people were booked under the blasphemy laws between 1987 and 2016. And, given the sensitivity around the issue, a mere accusation can prove to be life threatening. Amnesty International reports that Pakistan’s judicial system fails to protect blasphemy accused individuals from mob violence or vigilante justice, making extrajudicial killings common. Based on media reports, around 65 people have been killed since 1990 over claims of blasphemy.

Junaid has been in jail ever since his arrest and has never been granted a bail. He has been in a 6’ by 8’ cell in solitary confinement and is allowed to meet his family only once a week. He is being treated like a criminal even though he has not been proven guilty.

What Junaid’s case needs is access to justice and for the right to defence as is enshrined in the constitution of Pakistan. If he is found guilty, the court can punish him as per the law but he needs to be afforded an opportunity to defend himself.

But if Junaid is found innocent after a proper trial, there is no atonement for taking away six and a half years of his life nor the mental and physical impact of such experience.

Can the state avoid such instances in the future? There is a need to overhaul the current justice system, with accountability mechanisms put in place at every step of the process. There has to be more accountability of law-enforcement agencies as well as prosecution so that innocent men, women or children do not have to go through this.

The writers are also Fulbright alumni.

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