The good news is that the Supreme Court has finally put an end to Aasia Bibi’s torment. The bad news is she lost eight years of her life, which she and her family must have spent in the tortured state of not knowing whether she would be hanged by rope or bumped off by a vigilante.
It is hard to say if it is good or bad for Aasia Bibi that she can no longer live in Pakistan. She and her family will need to leave the land of her ancestors and find refuge elsewhere to stay alive. Meanwhile, her tormentors are alive and well. No harm has come to them. The losses lie where they fell.
We are taught in law school that losses mustn’t lie where they fall. We are taught the legal maxim ‘Ubi Jus Ibi Remedium’ (For every wrong, the law provides a remedy). Isn’t this common sense if a state or society is to be just? As citizens, we have reciprocal rights and responsibilities. He who wrongs another is to be punished. In the review hearing, Chief Justice Asif Khosa kept asking this basic question: what is to become of those who peddled lies to have Aasia Bibi convicted? His opinion in the SC judgment acquitting Aasia had laid bare their web of falsehoods.
About the public gathering where Aasia Bibi allegedly confessed her sins, Justice Khosa found, “that the evidence produced by the prosecution in respect of the said public gathering and about what transpired therein was not only an afterthought but was nothing short of concoction incarnate.” From the cause of the incident (a fight between women working the falsa field, which ensued because Aasia’s accusers refused to drink water fetched by her, she being Christian) to when it transpired, to the registration of the FIR, to the place of arrest of the accused (ie almost the entire account) was fabricated.
CJP Khosa observed that, “the glaring and stark contradictions in evidence produced by the prosecution in respect of every factual aspect of this case…lead to an irresistible and unfortunate impression that all those concerned in the case with providing evidence and conducting investigation had taken upon themselves not to speak the truth or at least not to divulge the whole truth. It is equally disturbing to note that courts below had also, conveniently or otherwise, failed to advert to such contradictions and some downright falsehood.”
CJP Khosa’s refrain here is equally applicable to our justice system in general. The sorry Aasia Bibi saga should be a moment of introspection for all of us who are associated with the justice system. “No person shall be deprived of live and liberty, save in accordance with [the] law” thunders Article 9 of our constitution. But we place no premium on liberty in this country. Utter the word liberty and what most will hear is debauchery. Our public narrative projects liberty not as a right but a contagion that will wreak havoc and which needs to be guarded against.
There is no liberty from incarceration on the basis of falsehood. Aasia Bibi’s case is the latest example. There is no liberty from enforced disappearances. If you seem too miffed about illegal abductions, you are conspiring with enemies of the state to malign our intelligence agencies. There is no liberty to demand rights if you imply that state agencies are the transgressors. So you cannot speak about the PTM, a grassroots youth movement which isn’t proscribed. Why? Because speaking about the PTM is the kind of liberty that aids 5G enemy warriors.
Let us move from liberty to safety. All systems make mistakes. But is our justice system safe enough to be allowed to run in its existing form? Mazhar Hussain was accused of murder in 1997. A sessions court handed him the death sentence in 2004. The Lahore High Court upheld his conviction. The SC granted him leave to appeal in 2010 and exonerated him in 2016. But Mazhar had already passed away in 2014 while in jail. The SC also acquitted a Mazhar Farooq in 2016 after he had spent 24 years on death row.
Ghulam Sarwar and Ghulam Qadir were two murder convicts not lucky enough to worry about the loss of their liberty. When the SC finally acquitted them in 2016, it turned out that the state had already executed their death sentence a year back. How do you return a life that has been wrongfully taken? How do you return a lifetime of liberty that has been wrongfully squandered? Whom do you hold to account? The lying witnesses? The conniving investigators? The complicit prosecutors? Or judges who assumed God’s mantle and yet meted out injustice?
Justice Khosa, who has produced most of our criminal law jurisprudence over the last decade, headed the SC benches that ordered all the aforementioned acquittals. So his lament that our criminal justice system is falling apart due to the cobweb of lies that encapsulates almost every case should be a call for action. Our proclivity to unabashedly concoct facts to achieve desirable outcomes in almost all cases should be a cause of concern for us. Everyone who interacts with the justice system or plays a part in it is aware of this reality and plays along.
As a lawyer you are required to tell a story of someone’s grievance or someone’s defence in legal language. Applying the law to verifiable facts, the judge is then required to pass a verdict. Let’s take a step back. A crime is committed. Anyone who becomes aware of it can report it to the police. The police make a report of it (which we call the FIR or first information report). Having been put on notice, the police are required to investigate the matter and unveil facts. And then share the facts with a prosecutor to see whether an offence is made out in terms of the law.
But each stage of this process is broken in our case. Everyone involved is trying to game the system: from the complainants and witnesses to the police to the prosecutors to the defence counsel. The FIRs read like prefabricated forms. The IO’s report doesn’t resemble a fact-finding inquiry aimed at deciphering and presenting facts. The witnesses are all prepped. Neither the prosecutor nor the defence counsel loses sleep if his story is economical with the truth. It all thus comes down to the gut feeling of the judge. Almost like the flip of the coin.
The recent cases in which the SC has set concurrent findings of trial courts and high courts aside to release convicts on death row are just one manifestation of how broken and unsafe our system is. And what is our collective response to our collective failure to put together a safe and credible justice system? We amended our constitution to create military courts (which a majority of SC judges justified in the name of necessity). In the case of military courts, the only sporadically functioning safety valve saving some of the accused from a preordained future also stands removed.
Prosperity of lies isn’t peculiar to our criminal justice system alone. Our civil and constitutional law practice is no different. There are entire areas of law (rent or pre-emption (haq shufa) to name a couple) wherein cases rely almost exclusively on falsehoods. Affidavits are sworn and cases are argued based on nothing other than lies and concoctions. And yet we continue to play the game. Similarly, high courts aren’t trial courts. As they don’t record evidence, they rely on facts asserted in affidavits. But no consequences flow to those who commit perjury.
The Sahiwal massacre is the latest case in point. The ghastly incident shook the conscience of the nation. And, yet, with all the witnesses and cameras and access to the individuals involved in the incident, we are unable to record and present a truthful account of facts. The gaming of the system is underway before our eyes. By the time the matter reaches the stage of final adjudication, it will encompass so many pollutants and concoctions that it will be impossible to dispense justice in accordance with due process in a safe and credible manner.
Who will hold us – investigators, lawyers and judges – to account? Who will inspire us to acquire the gravitas to refuse to play the game? But we are no better or worse than the society we represent, which seems to have lost its moral compass when it comes to speaking the truth. It is a chicken and egg situation. And we are chicken.
The writer is a lawyer based in Islamabad.
Email: sattar@post.harvard.edu
