The system’s revenge

Rani Bibi spent her youth sweeping prison floors, wondering if she would ever breathe fresh air again. Wrongfully convicted of murder when she was still a girl, she is now fighting for the reform of Pakistan’s criminal justice system in a high court case that could have huge repercussions for thousands of innocent people locked up for crimes they did not commit.

The system has failed her twice: once when it pinned a murder on a helpless teenage girl, and again by taking almost two decades to realise its error and set her free. It now has a chance to make amends, by admitting that it was wrong. At the moment, unlike other legal systems the world over, the concept of miscarriage of justice does not exist in Pakistani law.

In 1998, at the age of 14, Rani was arrested and charged with the murder of her husband. There was no physical evidence linking her to the crime, but she was convicted anyway, only because she was last seen with her husband before he disappeared.

She immediately sought to challenge her conviction at the Lahore High Court. An appeal was filed, but tragically, the superintendent at the District Jail, Jhang failed to obtain her signature or thumb marks on the appeal, so it was never considered. It was only by chance that her case was discovered by the late Advocate Asma Jehangir, who pursued justice on her behalf.

Pause to consider the 19 years Rani spent in prison, knowing she had committed no crime. She says she was beaten, forced to labour, and denied medical treatment. When the Lahore High Court acquitted her of all charges in 2019, the judge apologetically noted that she “was left to languish in the jail solely due to lacklustre attitude of the jail authorities” and “this court feels helpless in compensating her” for the miscarriage of justice suffered.

Although she is free, Rani’s sentence is not truly over, as she struggles to hold her head high and make a decent living. She has spent more time in prison than out.

Unfortunately, Rani is one of many who fall prey to the ineptitudes of Pakistan’s criminal justice system. A report by the Foundation for Fundamental Rights (FFR) and Reprieve, ‘The Pakistan Capital Punishment Study’, found that of all capital cases heard by the Supreme Court from 2010 to 2018, 39 percent resulted in acquittals. A system that wrongfully convicts four in every ten of those charged in the most serious crimes, sending almost 2,000 innocent people to death row, can be said to operate under the principle of guilty until proven innocent.

This highlights an urgent need for a compensatory regime to provide redress to Rani and other victims of miscarriage of justice. In such cases, the International Covenant on Civil and Political Rights (ICCPR) obliges states to incorporate a compensatory mechanism in their domestic law. Article 14 (6) states that when the emergence of new facts in a case reveal that a miscarriage of justice has occurred, and a conviction is overturned, “the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”

Even the most efficiently functioning legal systems are prone to mistakes that can have dire consequences for individuals and communities. For this reason, most criminal law jurisdictions affirm the right of individuals to seek compensation for wrongful convictions. In Pakistan, miscarriages of justice occur daily through negligence or malfeasance at all levels of the criminal justice system, from police to prosecutors, jail officials and judges. Pakistan, despite being a signatory to the ICCPR, has wilfully turned a blind eye to those victimised by the system’s failures.

The supreme law of the land, the constitution of Pakistan, guarantees that every citizen shall “enjoy the protection of the law,” will be “treated in accordance with the law” and shall not be deprived of life or liberty save in accordance with law. Rani Bibi’s constitutional rights appear to be just words when one pauses to consider that those responsible for enforcement of the law failed to exercise duty of care of the highest standard expected of them.

In her writ petition, Rani Bibi asserts that her entire engagement with the criminal justice system of Pakistan is rife with negligence and illegalities on part of the state machinery, which collectively resulted in not only a wrongful conviction, but also several miscarriages of justice. She asks the Lahore High Court to exercise its constitutional powers and declare that her fundamental rights had been violated without any legal justification, entitling her to a remedy by way of compensation from the government of Punjab.

Rani Bibi has been struggling for justice since she was 14 years old. The fight continues at the Lahore High Court, but it is no longer hers alone. Now, as a free woman, she is asking the judiciary on behalf of every other wrongfully convicted person: “What good is a legal system that cannot acknowledge and atone for its mistakes?”

The writer is a Bertha Justice Fellow at the Foundation for Fundamental Rights (FFR).