Wednesday December 07, 2022

Bad faith in law

September 19, 2020

The writer is a lawyer based in Islamabad.

Good faith is a well-entrenched concept in law. You act in bad faith if you argue a position you know to be false. And you are liable for negligence if you further a position without informing yourself of its truth.

Our prime minister has argued that public hangings and chemical castrations are his preferred solutions to the horrendous problem of rape. He must reconsider. Such emotive proposals are a false flag that cause actual harm by diverting attention from the need to initiate urgent comprehensive reform of all components of our criminal justice system.

Politicos can find themselves conflicted when in office. They need to control the sentiments and imagination of their people through popular rhetoric and they have an obligation to make sensible policy backed by facts and data that is capable of solving actual problems afflicting the country and its people. The two goals can be contradictory. Violent rape or child abuse outraging public sentiment expose this contradiction: you can project a spectacle as a solution that will lead to a pyrrhic victory or you can take the long hard road to reform.

When the APS tragedy befell Pakistan, our power elite projected military courts as a quick fix and, led by then PM Nawaz Sharif, we amended the constitution to establish these courts to provide swift justice and act as the deterrent that would root out terror. Everyone knew that such action would not solve Pakistan’s problem of terror. But it was done, creating a royal mess that our superior courts are now struggling with.

Today the Motorway Rape has outraged us and the false solution being touted is public hangings and chemical castration. The last time there was such outrage over young Zainab’s rape and murder, we also heard shrill demands for more hangings. Zainab’s murderer was caught and hanged. But as was expected, the incidence of rape and murder didn’t take a nosedive. But the playbook of those driving public policy hasn’t changed. The loudmouths in the PML-N and PTI both want the same thing: more hangings that will do nothing to address the problem.

Let’s go back to the basics. Penal systems are shaped by considerations of deterrence, retribution and reform. The death penalty is at one end of the spectrum aimed at using deterrence as a means to prevent heinous crime. We see a change from public lynching for all sorts of crimes during recent human history to now when criminal justice systems are losing their appetite for the death penalty. This is driven less by regard for rights of criminals and more by a realization that our justice systems are unsafe and belief in the death penalty’s deterrent value is exaggerated.

The death penalty remains a contested subject in the US where it is still on the statute books of many states. But the amount of data generated on the issue since the 1970s is significant. So far there is no credible study that establishes a negative correlation between death penalty and violent crime. But evidence of criminal justice systems malfunctioning and convicting suspects for crimes they never committed has been mounting. With DNA evidence, it is becoming obvious how human prejudice and community pressure often lead to wrongful convictions.

Pakistan is no different. Anyone who interacts with the criminal justice system understands that is depraved and moth-eaten. Those of us who form part of the system, whether as lawyers, judges or policemen, are most aware of the rot that has deformed our justice system into a monstrosity (whether or not we accept it, given our station in life or personal proclivities, is a separate matter). In view of the state of the system, the PM proposing writing harsher punishments into statute books as a solution reeks of bad faith or reckless disregard for our reality.

Solutions must be guided by the problem and its causes. A key issue with rape in our polity is that it is seen as a crime robbing the victim of her shame and thus goes unreported. Will a law requiring public hanging of rapists encourage rape victims to come forward and report freely in the face of the publicity and drama that will inevitably accompany such cases? If studies show that rape goes largely unreported as it acquires the form of incest where perpetrators and victims are blood relatives, will the threat of public hanging decrease incest or encourage family settlements even further?

Hangings are meant to deter violent crime, wherein the perpetrator will desist out of fear of consequences. In case of castration, the suggestion seems to be that the culprit is incapable of controlling his desires and needs medical intervention. In the first case, the solution attributes full agency to the culprit. In the second, it attempts to address the helplessness of the culprit and keep him and others safe from his own uncontrollable actions. Doesn’t someone proposing both solutions in one breath seem more focused on incensed public sentiment than the problem?

And who will the system hang publicly? Will it hang suspects or convicts? With a conviction rate ranging for three to five percent, you can write the most painful punishment conceivable to society in the statute books but it won’t be carried out unless the system is first fixed to acquire the ability to convict the guilty. And this is a key point often disregarded by purveyors of quick justice. The purpose of a justice system is to determine the true identity of the perpetrator of a crime and punish him as opposed to slapping a guilty verdict on every suspect pinned by the police.

In the proposals pushed, whether in relation to accountability or violent crime, the object seems to be to inflict harsh punishment on the suspect nominated by the executive as opposed to enabling the justice system to determine the truth and punishing the guilty. For decades now our approach to legal reform has been to create special tribunals, fix irrational timeline for trials, dilute the rights of suspects and limit the role of judges in managing the court process. It has never worked. And yet we keep repeating the same pattern in the hope of a miracle.

In 2016, the Supreme Court overturned the death sentence of two brothers who had already been executed. This in itself should have called for a moratorium on the death penalty. Someone should run by the PM statistics regarding the award of death penalty at trial and subsequently overturned by superior courts. And then the PM can review pernicious experiences unearthed by various justice projects around the world that have found through use of DNA evidence how innocent folks have been punished for horrendous crimes they never committed.

The simple point is that justice systems make mistakes and ours probably more than others. Justice systems are meant to deliver justice; not exact revenge or choreograph a spectacle to calm down public outrage. The singular failing of our justice system is that its ability to decipher and project the truth is now almost nonexistent. The consumers of the justice system who wish for desirable results are encouraged to falsify facts and manipulate it. Fixing the system requires institutional and behavioral change and painstaking effort, not harsher laws.

But if one were a populist, taking the long hard road neither promises quick fixes nor headlines.