A persecution system

Legal eye

Many of our politicos and anchors (expert crystal ball gazers) have declared that NAB’s failure to arrest Sharjeel Memon upon arrival in Pakistan and Dr Asim Hussain’s release on bail is proof of a new deal between the PML-N and the PPP. Let’s ignore the invidious suggestion underlying this claim that our superior courts are bereft of independence and mere puppets in the hands of the executive. More disturbing is the entrenched consensus that the release of an accused on bail is such an extraordinary concession that it can only be the product of an illicit bargain.

A few attitudes, inimical for rule of law and justice, seem to be shaping the mindset of our country’s educated middle class. The foundational principle of justice that an accused is to be presumed innocent until proven guilty is as good as dead in Pakistan. Memon and Hussain might be corrupt to the bone. But do we know that yet? They haven’t been tried in accordance with the law or found guilty by a court of competent jurisdiction. So how have we made up our minds? Because they have been declared as such in the media trial that has already concluded.

In a public argument any reference to the presumption of innocence will attract the charge of you being an apologist for looters. This cynical response isn’t completely without reason. It is argued that in a broken criminal justice system that never convicts anyone with means this presumption helps those who can play the system. This makes sense, as we are a short-cut society. We don’t want to fix the system to make it fair and efficient. We just like cheering anytime anyone with means accidentally gets caught at the wrong end of the system.

The distinction between an accused and a convict has been extinguished here. If trials linger for years and suspects get released, we don’t want to find and fix the causes of delays or low conviction rates. If investigations fail to find credible evidence for securing convictions, we want to change our law so that evidence isn’t required anymore. If courts give the benefit of the doubt to an accused, we want new courts that will treat the accused as guilty. We just want to see folks punished. Whether they are guilty of the wrong they are accused of is secondary.

In our evolving populist narrative, anger has come to be seen as an appropriate substitute for facts and logical reasoning. If you are angry with terrorists and civilian courts for releasing terror suspects, that is a good enough reason to create military courts that promise to punish all accused and achieve a 100 percent conviction rate. If you are angry at a system that is corrupt and no one accused of corruption ever gets punished, that is a good enough reason to change the rules of justice and support punishment of anyone accused of corruption.

Our criminal justice system is cruel, arbitrary and loaded against the vulnerable. We have continued to sacrifice its safety to enhance its efficiency. But with our ham-fisted approach to efficiency we have ended up undermining its safety, credibility as well as efficiency. The more we opt for knee-jerk reactions to structural problems, the more arbitrary and abusive the system becomes and the harder it is to institute meaningful reforms. While we blame vested interests, laziness and leave from common sense might just be the key obstacles to reform.

Anytime an FIR is registered against someone accused of a cognizable offence, the advice given by everyone including the police is to seek pre-arrest bail. Why should this be so? Why isn’t an FIR (First Information Report) merely treated as information to be investigated? Why does automatic arrest follow from an FIR? Back in 2005, Justice Asif Khosa – while authoring a full court judgement by the Lahore High Court (PLD 2005 Lahore 470) – noted that, “All statutory provisions and precedent cases… manifestly point towards the intention of the law that a suspect is not to be arrested straightaway upon registration of an FIR or as a matter of course…”

“It would be preposterous and a mockery of justice”, he further wrote “if a person may be deprived of his liberty first and later on the allegations against him may be found by the arresting agency itself to be bogus, trumped up or false.” The Supreme Court has endorsed the same principle. More recently in a judgement also authored by Justice Khosa (2014 SCMR 1672) it held that, “even in cases of the most heinous offences the police, not to speak of a court, is under no statutory obligation to necessarily and straightaway arrest an accused person during an investigation as long as he is joining the investigation and is cooperating…”

The SC articulated the logic behind presumption of innocence back in 1972 (PLD 1972 SC 81) when it said that, “it is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation… The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration…”

In November 2016, the SC acquitted a death row prisoner after he had spent two decades in prison. In December 2016, it acquitted a prisoner convicted of murder who had spent 11 years behind bars. In October, it acquitted two brothers convicted for murder only to find that they had already been executed. The last is the most gruesome example of how broken our system is. Who should the victims’ families sue for wrongful death? Even in the earlier cases, can victims be compensated for a lifetime of wrongful confinement?

Why discard principles of law rooted in common sense? If the person named in an FIR joins the investigation and there is no reasonable apprehension that he is a danger to the public or might commit more crimes if not taken into custody or that he might abscond, why arrest him? Why should courts be clogged up with pre- and post-bail applications that eat up one quarter of their time? Even when investigators believe that an accused has committed an offence, why refuse him bail if he is not a threat to society or a flight risk?

Investigation in our system is often code for torturing and pressurising the accused to obtain confession. Hardly ever is any investigation conducted or evidence gathered independently in most cases. In cases where there is no confession, keeping an accused behind bars pending trial is just substitute for punishment. The criminal justice system in its present form isn’t operated to mete out justice, but only to vex whoever is caught at its wrong end. Everyone involved in the process knows this and yet the circus continues.

Our system isn’t strong or able enough to take on power elites. The only time elites interact with the criminal justice system is during intra-elite battles with incumbent elite groups settling scores or engaging in a turf war with another group. But non-elites, even those with some financial means and strings to pull, can’t get disentangled from the system once caught without shedding the pound of flesh the system demands. And the poor, unable to satisfy the system’s rent-seeking demands and hire lawyers to fight it out, simply don’t have a chance. They are the ones our jails are full of, helping our modest conviction statistics.

We read stories about olden times when women who stepped on the wrong side of ruling power elites were declared witches and burnt. We watch old movies with crowds gathered around to cheer public executions. And while doing so we mostly flatter ourselves thinking we have evolved as a people.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu