Wednesday January 19, 2022

The quest for justice

October 24, 2019

Justice, and the right of all Pakistani citizens to it, was of course a major platform on which the 2018 election – bringing the PTI to power – was fought.

The name of the PTI itself, interpreted into English as the Pakistan Movement for Justice, puts justice at the centre of its mission. But justice does not imply punishment alone. It also involves liberty and the right to it. Indeed, the right to liberty is one of the fundamental rights guaranteed by the Pakistan constitution. Article 9 of the International Covenant on Civil and Political Rights, to which Pakistan is a party, states the same.

The ICCPR’s right to liberty has been defined by the UN Human Rights Committee which states that “detention pending trial must be based on an individualized determination that it is reasonable and necessary, taking into account all the circumstances…”. The committee recommends that wherever possible, other alternatives to detention before trial such as bail, electronic bracelets or other conditions be considered so that a person is not deprived of liberty before being found guilty.

In Pakistan, this aspect of justice does not seem to be upmost in the minds of either the executive or the judiciary. Of the 78,160 persons held in jail in Pakistan’s prisons, which number nearly 100, 48,780 or 62 percent of the population, are people accused of offences and awaiting trial. In some cases, they waited for years. This is often because while international standards of law lay down that detention prior to bail should be a preventive measure. It is to be used only if there is a risk that a detained person will frustrate justice by destroying evidence, threatening witnesses or causing further harm rather than a part of punishment awarded to a person.

Those who are facing trial are of course not guilty until the court deems them to be so. The inconsistent interpretation by courts of laws on bail, and the setting of bail at levels which are impossible for many detainees to pay, accounts in part for the denial of liberty to thousands of persons. Surely the focus of all institutions involved in the matter must be to remedy this reality. Cases have been documented of people who have remained behind bars without facing trial for periods of years. If they are then found innocent, it means entire portions of their lives have been taken away from them.

Pakistan’s prisons are also notoriously overcrowded and poorly run. Justice does not mean innocent people in virtually intolerable or inhumane conditions of detentions, but treating them with the essential humanity that should be woven into the structure of every state. There is no evidence that draconian measures including public hangings or other measures prevent crime. Indeed, the lowest rates of crime exist in countries such as the Scandinavian nations which run prisons that some have equated as being little different to hotels, with restrictions placed on movement as is necessary.

Pakistan needs to rethink its entire system of justice. As more and more people vanish behind bars, the population in these places of detention grows and it becomes even harder for beleaguered prison managements to follow the Jail Manual available in every prison, or offer detainees basic rights.

The chief justice of the Islamabad High Court also pointed out that too many political matters in which petitioners sought detention, were being brought to the courts which already faced a backlog of thousands of cases rather than being sorted out in parliament. Extremely tardy police investigation which can in some cases take over a year to complete, even though the stipulated period is 14 days or three days beyond this if permitted by the courts, adds to the under trial population in jails.

We are not achieving anything in terms of justice by jailing more and more people. Those who are not a risk to society and who are able to meet the bail amounts set in their cases should be released immediately. This would also do a service to the actual quest for justice by permitting them to pursue their cases alongside their legal teams. It is difficult to understand why some such individuals remain in jail for months.

There are of course other barriers to justice. Some of these exist around the world. Wealth, status and access to quality legal advice has a major impact on the final outcome of a case. The OJ Simpson murder case of 1994, in which the American football hero was accused of murdering his wife but acquitted by the court, is seen by many legal experts as a demonstration of this sad reality. The fact that Simpson was found guilty in 2007 in a completely different case involving burglary and released in 2017 does not change the facts of that murder trial he faced.

We can of course see examples almost every day in our own society with specific laws which remain on our statute books, including the qisas and diyat law, aiding this. There are multiple examples of wealthy people who have escaped jail by using this law and paying blood money to obtain freedom. The poorest, most vulnerable victims are of course most likely to suffer a lack of justice as a consequence.

These are the facts that should need to be looked at. They are of course also other impediments to justice, including nepotism, poor policing, a forensic system that is simply not in keeping with the scientific age and other similar problems. Even juvenile prisoners, who according to international law should be tried as quickly as possible or released on conditions that enable them to be monitored and stay behind bars – in most cases alongside hardened criminals – for years in most cases because of the abject failure of our justice system.

There is little point in focusing on simply imprisoning people in an attempt to demonstrate that justice is in action. Justice does not need to be done but also seen to be done. The perception that justice exists in society and that every citizen has equal access to it is essential for citizens to believe that they live under a system which treats every individual equally and in keeping with standards of justice laid down in our constitution and in international law.

The failures in this must be examined so that the work of justice can be converted into a reality without the doubts which exist at the present time.

The writer is a freelance columnist and former newspaper editor.