Laws for liberty - Part - I

What good is a liberal constitution if it cannot secure the most basic of all liberties: the liberty of person?

Seventy-two years after the supposed overthrow of the colonial state, most people involved in public life in Pakistan still live in the perpetual fear of getting arrested and detention by the state – even if they are completely innocent. We are not talking about the fear of getting convicted by a court of law for the commission of a crime: that would be a ‘healthy’ fear, the intended outcome of any justice system.

We are talking about the fear of a police official or NAB official suddenly appearing at your doorstep, arresting you for an offence you had never even dreamt of, and locking you up behind bars for months, sometime years, until you are finally acquitted by a court of law.

The fear of suffering wrongful pre-trial or under-trial detention is not unfounded. There are statistics that justify it. Official figures recently presented by the Ministry of Human Rights to the Islamabad High Court show that around 66 percent of all prisoners in Pakistan are under-trial prisoners. Juxtapose this with another fact: our average conviction rate is in single digits. Put the two facts together, and you come to the conclusion that around 60 percent of all those who are presently behind bars are ‘wrongfully’ detained. They will, at the end of a long tunnel of litigation, be declared innocent; and yet, they must suffer detention for months and years.

Most analysts provide purely political and cultural explanations for this culture of excessive pre-trial and under-trial detention which has taken a hold over our criminal justice system. Ours is a society with scant regard for the presumption of innocence, they say. Ours is a state prone to excesses, others contend. While these are partially valid explanations, they miss out on something equally important: the role of “bad laws” in perpetuating this mess.

In this two-part article, I will be arguing that this alarmingly high level of pre-trial and under-trial detention is not in spite of the laws; it is because of a certain set of procedural laws, which we have unthinkingly inherited from the colonial era.

First, let’s examine our law relating to the arrest of a person under investigation. In a society where everyone is presumed innocent until proven guilty, a person who is still under investigation should, as a general rule, never be arrested. There are only three logical exceptions to this rule: (i) if the accused is likely to abscond in order to evade investigation; (ii) if the accused is likely to harass possible witnesses or otherwise obstruct the course of investigation; or, (iii) if the accused is likely to re-offend.

Surprisingly, this common sense principle does not find a mention anywhere in our 565-sections-long Code of Criminal Procedure. In fact, the Code, which was first put together for us by the British in 1861, altogether avoids any discussion of “grounds of arrest”, thereby leaving investigation agencies and Magistrates with almost entirely unfettered discretion. There are some recent judgments of Pakistan’s superior courts, such as Khizar Hussain (PLD 2005 Lahore 470) authored by former CJ Asif Saeed Khosa and Haider Ali (2015 SCMR 1724) authored by Justice Jawwad Khawaja where this principle has been articulated. But it is not mentioned anywhere in the Code itself.

It is important to recognize this legislative gap because, for around 160 years, the psychology of our law-enforcement personnel has been shaped by the Code (and not the judgments of the superior courts). A gap so fundamental cannot be filled through sporadic judicial interpretation alone; it calls for parliamentary intervention.

While the grounds for which a person should or should not be arrested are nowhere mentioned, a list of persons whom the State can arrest is provided. There are nine categories of person who can be arrested without needing a judicial warrant, the broadest of which is: everyone “concerned in any cognizable offence”. More than 250 offences have been categorized as “cognizable offenses”. In practice, what this means is that if a complainant is willing to go to a police station and allege that you’ve committed any one of these 250 plus offences, the police can lock you up overnight, no questions asked.

Second, let’s have a critical look at the concept of ‘remand’. As lawyers enamoured to the constitution, we often recount Article 10(2) which promises that anyone who has been arrested by the state must be presented before a magistrate within 24 hours of his arrest. What we don’t mention is the thing that most likely happens next: remand. Section 167 of the Code empowers a magistrate to “authorize the detention of the accused in such custody as such magistrate thinks fit, for a term not exceeding fifteen days in the whole”.

After spending a night in detention, when you are brought before a magistrate, he or she usually sends you back to one form of custody or another. If the magistrate is kind, you go to prison; if s/he’s less so, you go back to the police lock-up. After spending anything fifteen days or so in either form of custody, you are again hauled before the magistrate. Usually, the remand is unthinkingly extended and the process goes on, until your lawyer files for bail.

In principle, a magistrate should not remand you to any form of custody for even one day, except after recording detailed reasons in writing about why this was necessary. So, for instance, s/he may mention evidence presented to him/her showing that you have been defying call up notices, destroying evidence, harassing witnesses etc. But in reality, this requirement is mostly honoured in the breach.

Rare is the magistrate who bothers to offer any detailed reasons at the remand stage – unless pushed hard by a skilled and powerful lawyer. The Code does not provide any appellate forum where you can appeal the mindless extension of remand nor does it provide any penalty for a judge who mindlessly remands accused persons to custody. This scheme of criminal procedure, designed for a colonial government, is hardly a recipe for securing the liberty of the individual from state intrusion. Parliament must reconsider it. The least that can be done is to add a section providing a narrowly tailored list of grounds of arrest – such as “absconding”, “witness tampering” etc. The list should be narrow and exhaustive.

The point it, if we are ever to the realize the constitution’s promise of liberty, it is not just the enforcement of law, but the laws themselves which will have to be questioned in light of higher principles.

To be continued

The writer is a partner at The Law and Policy Chamber.

Email: umer.gilani@gmail.com