Due process as faith

Pakistan suffers from an affliction: its abiding faith in hanging a few folks at the stake as a solution to complex problems confronting society. Whether it is terrorism or child molestation or corruption, our knee-jerk reaction is to pander to the baser instincts of society and demand that a few suspects be made a spectacle of horror (‘ibratnak anjaam’) for the crime to be deterred forever. Only this past week, the NAB chairman and our worthy prime minister articulated their craving for more power to punish.

October 10 is the World Day Against the Death Penalty. As a country with an insatiable desire for harsher punishments what has our record been? According to the Justice Project: “Pakistan’s use of the death penalty is amongst the harshest in the world, accounting for 26 percent of the world’s death-row population, 13 percent of global executions and 14 percent of world’s death sentences. Since 2004, Pakistan has handed out at least 4,500 death sentences, an average of one per day. Every 7th person sentenced to death and every 8th person executed in the world is a Pakistani.”

“In December 2014, Pakistan lifted a de facto moratorium on the death penalty. From then until May 2017, Pakistan has executed 465 people at an average of 3.5 executions per week.” This isn’t just about numbers. Javed Iqbal, the serial killer who confessed to dissolving over a 100 boys in acid, was convicted. The sentence read: “You will be strangled to death in front of the parents whose children you killed. Your body will then be cut into 100 pieces and put in acid the same way you killed the children.” He was later found hanging in his jail cell.

Zainab’s tragic story anguished us all. Her murderer Imran Ali was caught. The trial proceeded swiftly and he was executed. But cases of abduction, molestation and murder of children haven’t dwindled. If harsh penalties were the panacea for eliminating crime, we should’ve been a land of milk and honey. Penal systems are designed keeping in view considerations of reform, retribution and deterrence and striking the right balance between safety and efficiency. They must be efficient in terms of prosecuting suspects and safe in terms of convicting them.

Let’s look at our record in that context. There is no need to bandy about numbers. Just run a Google search (the preferred means of research, now that PM IK has vouched for it) on rulings delivered over the last decade by Chief Justice Khosa in which convictions were overturned and prisoners released after spending lifetimes in prison. In one instance, the bench ordered the release of convicts who had already been executed. Imagine the lack of safety of a justice system where such deathly mistakes are routinely caught by the last judicial forum.

The CJP continues to hammer in that courts have no option but to order release when evidence is insufficient or gathered not in accordance with law. This past month there was much hoopla about suspects dying in police custody and torture as the go-to investigation method in Pakistan. A report by the Justice Project, in collaboration with Yale Law School, discovered “conclusive signs of abuse in 1,424 cases out of a sample of 1,867 medico-legal certificates compiled by a state-appointed medical board in the district of Faisalabad from 2006 to 2012.”

Abbas Ahsan, commandant of Police College Sihala, tweeted last week that “considering last year’s budget, (the) Punjab Police was allocated Rs203,308,000 as cost for investigation for 449,532 cases investigated in the same period, which comes to Rs452 per investigation.” Let that sink in. We want police that don’t have funds to run patrols for watch and ward duties to be paragons for integrity and citizen service, and gather evidence, investigate reported cases thoroughly on a budget of Rs452 a pop while treating the accused with due courtesy?

Lack of evidence-based investigation is only the tip of the iceberg. Our laws are designed to incentivize a skewing trial process. The Research Society of International Law analyzed reported judgments related to the Anti-Terrorism Act from 1998-2013 and found that the “majority of cases registered under the ATA weren’t acts of terrorism per se. The cases registered appeared to be ordinary criminal offences that bore no indication of terrorist intent.” The ATA is overbroad and trials proceed swiftly, which incentivizes having cases falsely classified as terror cases and tried under the ATA.

And what about equity in our criminal justice system? There is none. The system hardly ever punishes those with means, unless, as in corruption cases, they fall foul of power elites with greater means to control the state at the given time. It is often said that it is not the severity of punishment but its certainty that deters crime. There is no certainty of punishment unless you are caught on the wrong side of the system either due to poverty and lack of means or due to your politics making you an inconvenience that the state wishes not to suffer.

But there is no certainty of punishment and absolutely no check on the abuse of power by the state. So in a clash between equals where no one higher up in the echelons of power has any stakes, someone might get punished. But no one will get punished for journalists attacked and murdered, nor held accountable for bullet-ridden bodies of activists showing up. Those making a noise about folks going missing will be seen not as constitutionalists or rule of law proponents but as miscreants.

The NAB chairman under the NAB Ordinance is, without exaggeration, a monocrat with excessive unregulated powers. It is for him to decide who to investigate and who to let be. It is for him to decide who to arrest for purposes of investigation and who to let be. It is for him to decide who to prosecute and who to let be. The whimsical manner in which NAB exercises its power is before us. The disparate treatment meted to those on the right side of the system and those on its wrong side is in plain view. And yet the chairman yearns for more unfettered power.

What are the fetters on his power? Our constitution exists as a constraint on the power of the state and as a shield against undue use of such power against citizens. Our law says that all power must be structured, exercised in a just and fair manner and reasons be given for why it is exercised when it is. And yet our courts refuse to regulate the powers of the NAB chairman. They say the NAB law is flawed. They say NAB’s exercise of power is colourable. But they also say that anyone caught in NAB’s juggernaut can only be bailed out in cases of exceptional “hardship”.

Another person who wants unconstrained power is the PM. He wants to be able to punish the corrupt in five days. Any prizes for guessing who will be on the hit list if he had such power? Would it include anyone who has sworn allegiance to him? If he is unhappy with lack of convictions or delay in convictions, what has he done since he has come to power to reform any one component of the criminal justice system? What initiative has he taken to make investigations foolproof? What has he done to ensure that trials are conducted expeditiously?

Constitutionalism and rule of law are akin to a faith. To uphold them, you must believe that unadulterated process is sacrosanct and it is sinful to fidget with it or short circuit it to manufacture desirable results. You must believe that every suspect has a right to be defended. That everyone is to be deemed innocent until proven guilty. That justice must be delivered in accordance with written law and not vague conceptions of morality or popular rhetoric. Our justice system’s key problem is that it exists as facilitator of the state as opposed to protector of citizens.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu