Saturday January 29, 2022

Laws for liberty

February 29, 2020

Official statistics show that over 66 percent of Pakistan’s total prison population consists of under-trial prisoners. Our average conviction rate is in single digits. Put these two facts together and you realize that around 60 percent of those who are presently in Pakistan jails are wrongfully detained there – at least as far as formal justice is concerned.

At the end of a long tunnel of litigation, these tens of thousands of will be declared innocent; and yet they must linger for years behind bars. Why is this so?

In this article, I am arguing that the excessive prevalence of pre-trial and under-trial detention is at least partly the result of flaws in our law of criminal procedure. It is not just their implementation but the laws themselves which must be reviewed in the light of our constitution. In the first part of this article, I pointed out gaps in our colonial-era laws related to arrest and remand. Now, I look at flaws in the law of bail.

In a system which is based on the presumption of innocence, every accused person should, in principle, be entitled to be released on bail. The only logical exception would be an accused person who is likely to commit “absconsion”, “obstruction of investigation” or “re-offending”. But this is definitely not what our Code of Criminal Procedure says.

Under the Code, which was first put together for us by the British in 1861, your right to bail has nothing to with anything that you might do; instead, it depends entirely on what the complainant has alleged against you. If the complainant has taken care to allege a sufficiently serious offences against you, you are likely to be in trouble, regardless of whether you did it or not.

The basic scheme provided in the Code is that all offences have been put into three categories: (i) strictly bailable (S 496); (ii) generally bailable (S 497); and (iii) generally non-bailable (prohibitory clause of S 497). The third category, which comprises all offences which are categorized as non-bailable and carry ten years sentence or more, is really problematic.

If a person has been accused of an offence falling in this category, he must prove that there are no “reasonable grounds for believing that he has been guilty”. For offences in this category, the burden of proof, in a way, shifts to the accused, even at the bail stage. The accused must establish prima facie innocence; otherwise, he will stay in jail until acquitted.

The category of ‘generally non-bail offences’ is not confined to the most serious offences such as ‘murder’ or ‘rape’. Several dozen offences fall in this category. Add to this the fact that an accused person who is trying to prove his prima-facie innocence in such cases is not legally entitled to have access to the police file. Just imagine what it is like to try and prove your innocence before a judge without knowing exactly what the evidence has been submitted against you.

Many hard-core criminal law practitioners, who have internalized the Code, do not think of the law of bail in these terms. But, seen from the lense of constitutional law, it becomes clear that our bails procedure represents a complete reversal of the presumption of innocence.

As if our colonial law related to grant of bails was not bad enough, in 1999, a fourth category was added: “strictly non-bailable” offences. Under the National Accountability Ordinance, 1999, which is one of most draconian laws ever written, the remedy of bail was abolished altogether. In the Asfand Yar Wali case (PLD 2001 SC 607), where the vires of this provision of NAO came under challenge, the SC struck a compromise.

The abolition of bail-granting powers of the trial court was not struck down; but it was held that in deserving cases, bail can still be granted by the high courts, while exercising their extraordinary constitutional jurisdiction. Here too, the accused must establish prima facie innocence, rather than the other way round.

After the adoption of the constitution of Pakistan of 1956, our parliament should have reviewed the entire scheme of our criminal procedure. India did just that. In 1973, they adopted a new Code of Criminal Procedure which addresses at least some of the issues raised here. Pakistan’s parliament, however, never got round to it. Even the UK overhauled its procedure through the Bail Act of 1976.

Over the years, our Law and Justice Commission of Pakistan (LJCP) has been recommending amendments. Notably, the LJCP has, in one of its reports, suggested the insertion of Section 59-A, into the Code to incorporate the “right to have someone informed when arrested”. Reports No 17 and 49 are noteworthy in this regard. In Haider’s case (2015 S C M R 1724), the Supreme Court of Pakistan also called for a review of the CrPC’s compatibility with fundamental rights. But thus, parliament has not undertaken any major overhaul of our law related to arrest, remand and bail – inherited from the colonial era.

One hopes that, if no one else, at least the dozens of parliamentarians who have had a recent brush with unfair detention will pause and reflect on the issues pointed out in this piece.


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