Miscarriage of justice

The last week of 2017 was extremely depressing. A bench of the Supreme Court (SC) absolved a man accused of blasphemy charges for want of evidence. The bench observed that a person who falsely accuses others of blasphemy is in fact the one who commits blasphemy.

The victim, arrested from Bahawalnagar in 2008, eventually got justice but only after spending nine precious years of his life in pre-trial confinement, and that too after the SC provided him with state counsel. For the record, this was not a first; in more than 95 percent of blasphemy cases the apex court has declared the charges to be ‘fabricated’.

But how does one compensate Rizwanullah and his family for the one omission that cost him his life in Kohat jail? Rizwanullah was convicted by a military court and his appeal was filed in the SC in May, 2016. It took one year for the Supreme Court of Pakistan to write to the jail authorities ordering for his execution to be stayed. But before the letter could even reach the concerned authorities, his dead body was handed over to his family.

And how can one forget Syed Rasool’s acquittal by the Lahore High Court after he had spent three years on death row because his family was unable to pay the lawyer’s fee. Then we have Shaukat’s acquittal by the Supreme Court, 14 years after he was wrongfully convicted for murder by a sessions court in Karachi. There are many similar cases where the accused were absolved by the apex court – after having spent decades in pre-trial confinement – on grounds of the charges being fabricated.

Senior lawyers argue that there is always a timetable that the subordinate judiciary has to follow but that high court judges usually don’t follow strict office hours. Some judges even prefer adjournments. But it is time for the higher judiciary to review its performance because six to eight years of pre-trial detention have become a norm. Justice Mansoor Ali Shah might be right in observing that lawyers’ strikes on petty matters are damaging the cause of administration of justice. But what has the judiciary done to address this problem? What reforms has it initiated to safeguard the people from falling victim to the miscarriage of justice?

Punjab has one judge for 62,000 people as compared to the developed countries, where it is one judge for 4,000 to 10,000 people, but even then the LHC’s annual holiday calendar suggests the high court shall remain closed for at least 93 days in 2018 – including 62 days of summer vacations (excluding weekends). On the other hand, the subordinate judiciary shall enjoy 55 days off with 31 days designated for summer vacations. Do the high court(s) have any plan to cut their own two-month long vacations and bring them at par with the subordinate judiciary’s? We need to seriously consider reforming the judicial system within the available resources. High courts could shorten their vacation periods and establish a precedent for the subordinate judiciary.

It is also true that most of the people can’t afford to hire lawyers because of which they end up spending years in pre-trial confinements, only to be later acquitted. Why have people been forced into believing that it is only those who can pay expensive lawyers can get justice and it is detention, conviction and execution for those who cannot?

Under Article 10-A of the constitution and Article 14 of the ICCPR, it is the fundamental right of every individual to be given a fair trial, which means trial within a reasonable time and any delays would be considered as justice denied. The apex court should decide criminal appeals on a priority basis and if there is workload on the courts then the government, in consultation with the higher judiciary, should revisit the laws and procedures related to bails so as to curtail longer pre-trial detentions. In 2017, the UN Committee on Torture and UN Human Rights Committee in its concluding observations on the initial report of Pakistan raised serious reservations over the alleged custodial torture, prolonged and unchecked detentions.

With an expensive justice system and a probability of error, how can a state guarantee an individual their constitutional right to fair trial and safeguard them against detentions? Human rights activists and researchers believe that around 80 percent of prisoners in the country’s overcrowded jails are facing pre-trial detentions; these include juveniles and women. After spending years in incarceration and later being found innocent, these people receive nothing for their time spent in the prison. Pakistan should legislate on the matter and compensate victims of the criminal justice system’s flaws and errors. The victims of the justice system will not be helped much by observations of the honourable apex court at the time of acquittal.

The writer is a Peshawar-based lawyer.

Email: irshadahmadadvocate@gmail.com

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