Bachal Mai, a married woman in Muzzafargarh, was raped by four persons – with panchayat backing. The police neither registered a case nor ordered a medical examination.
This is just one of the many manifestations of our deeply flawed criminal justice system. Arresting those responsible and punishing them is indeed what justice demands. That is not where we must stop though. It is about time we pressured the state to address the root causes of not only this incident but all injustices stemming from a faltering criminal justice system.
Such cruel and backward conduct is not confined to places in which a parallel legal system operates. The mainstream criminal justice system itself is in need of urgent reform. In 2010, prison staff at the Toba Tek Singh district prison stripped three prisoners, taping their genitals to prevent them from urinating. They forced each of the prisoners to drink 3-4 litres of water. By the time the tape was removed (four hours later), all three prisoners had developed renal ailments. A senior police officer conducted an inquiry and cleared the accused officials of any wrongdoing on the sole basis of their own testimony.
One can identify what happened in Toba Tek Singh as torture – or at the very least, inhumane and/or degrading treatment. Apart from torture and inhumane treatment, daily violations plague the Pakistani prison system. The International Crisis Group (2011 report on reforming Pakistan’s prison system) highlights that, on average, expenditure on food for prisoners is between Rs50 and Rs100 per day – ie less than $2 a day. In order to obtain medicines or a bed in a hospital, prisoners often have to pay bribes. Further, the maltreatment of prisoners who belong to minority communities is common – they are afforded poorer facilities and often violently attacked not only by Muslim inmates but also by prison staff.
With no accountability mechanism, daily violations of the rights of prison inmates not only go unreported but also unpunished. No mechanism exists at either the federal or provincial level to hold prison officials accountable for abuses of power and human rights violations. In fact, prisoners rarely report instances of abuse due to the legally mandated injustice that allows prison authorities to arbitrarily transfer them from one jail to another, without any justification. This legal injustice derives its authority from Section 29 of the Prisoners Act 1900 and Rule 147 of the Jail Manual.
In further violation of human rights norms, as well as Pakistan’s own domestic law on child protection, children are illegally detained in Pakistani prisons for months on end. Lack of both understanding and infrastructure allows these children to be kept in detention with hardened criminals, in contravention of the Juvenile Justice System Ordinance. There is absolutely no distinction made as first-time offenders, low-level offenders, juveniles, murderers and militants are herded together in the same jails.
Provincial governments have been trying to resolve the issue of overcrowding by constructing more prisons – sort of like the US private prison system except luckily we haven’t fallen to the lowest point in our history where we’d actually profit from putting people in prison. However, the problem is not merely infrastructure that is lacking; bail rights are rarely, if ever, granted and accused persons are seldom produced before the court on their trial dates.
The International Crisis Group cited an alarming figure, which shows just how heavily overcrowded Pakistan’s prisons are. Their report states that there are nearly 33,000 more prisoners over and above the authorised capacity of prisons. To add to disturbing statistics, around 50,000 out of 78,000 prisoners are on remand, either awaiting or undergoing the trial process.
Where do these problems stem from? The Pakistan Penal Code, the Qanun-e-Shahadat Order and the Criminal Procedure Code form the foundation of an inherently flawed criminal justice system. Not only does our criminal justice system operate in accordance with three outdated codes but we allow the operation of a parallel legal system in our Federally Administered Tribal Areas (Fata) and Provincially Administered Tribal Areas (Pata). The Frontier Crimes Regulation (FCR) 1901, a repressive relic of our colonial past, and the Nizam-e-Adl (2009) foster a culture of discrimination and inhumane treatment, providing little to no recourse to detainees.
Having ratified the International Covenant on Civil and Political Rights (ICCPR) and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the state of Pakistan is under an obligation to immediately allocate sufficient resources towards ensuring that the criminal justice system operates in accordance with the principles of inherent human dignity, justice, fairness and equality.
So long as children are detained with hardened criminals, prisoners are humiliated and tortured, and women are raped as a consequence of the approval of a parallel legal system, Pakistan can produce as many National Action Plans as it wants – this society will never see any tangible progress or development.
The writer is a lawyer.
Email: imaanmazarirsilpak.org