Travesty of justice

The writer is a former secretary, Law & Justice Commission of Pakistan.

Societies that tolerate such systems of justice and accountability that are incapable of delivering impartial and fair justice to all are neither stable nor sustainable. These societies either change for good or perish. In such circumstances, delaying justice reforms is another gross injustice – a rampant violation of fundamental rights.

Pakistan’s justice system will not hold itself accountable. There are countless cases where the Supreme Court (SC) of Pakistan acquitted people for being wrongly convicted after decades of them languishing in jail. Although the SC acknowledges this miscarriage of justice – whenever such a case happens – it has never punished any judicial or other officers for their failures that result in such a travesty. This lack of accountability sustains a culture of inefficiency and impunity.

Also, the highest court in the land does not venture to account for the hurt and loss of life and liberty suffered for no fault of the hapless person who got caught up in this fractured system. S/he is a victim of a system that too often fails to deliver. It is all written off as tough luck.

The attitude implies that the person just ‘be thankful’ that s/he has been acquitted or released. But in some cases, when the accused is no more, there cannot be any acquittal or release. To highlight the gravity of what is at stake, it’s perhaps pertinent to cite a few recent cases and names.

In the case of the late Brig (r) Asad Munir, we learnt from his ‘suicide note’ to the then chief justice of Pakistan about how he felt hounded and humiliated by NAB officials and the accountability process, which drove him to suicide, and now we have found that there is no case against him. Who is responsible? Why can’t we design a more humane and fair investigation process?

In the recent Noor Mukadam case, the trial court took notice of the inadequacies of the investigation. What action was taken against the offending official and/or process? Why didn’t the prosecution pick up on the inadequacies? These failures demand a thorough investigation to ascertain what went wrong and how to prevent it from happening again. But we stubbornly refuse to learn and be accountable for our conduct.

It is not acceptable to put the entire blame on ‘the system’. State officials and people who are managing and operating at each stage of the process and failing us for whatever reason are responsible for the outcome. We, as a society, are responsible for ‘the system’ and cannot absolve ourselves of the responsibility and consequences.

As a society, we must compensate victims of the system and help them move on from the irreparable hurt and pain that the system has inflicted upon them. And parliament – our representatives – needs to catch up by enacting suitable legislation to prevent such miscarriages of justice. And in cases where a person is wrongfully imprisoned, s/he must be compensated for the wrong and harm suffered. Such a terrible injustice must be recognised meaningfully.

On October 6, 2016, the SC ordered the release of two brothers Ghulam Sarwar and Ghulam Qadir, who had been wrongly convicted of murder, – only to find that they had been executed on October 13, 2015. This despite the fact that the home department and jail authorities were aware of their appeal against the court orders. Following the verdict, an application against the relevant DSJs, home secretary, interior secretary and jail superintendents was filed for failing to perform their duties under Article 190 of the constitution. Was anyone held responsible for this tragic outcome, which violated their fundamental rights including the right to life and security (Article 9), right to dignity (Article 14), and equal protection of the law (Article 25)?

In the Rani Tanvir Bibi case, the accused was wrongfully convicted for murder as a teenager and was set free after two decades. Twenty years of her life and liberty were destroyed and lost. The treatment that was meted out in those lost 20 years was appalling. In 2017, the Lahore High Court acquitted her, observing that she was “left to languish in jail solely due to [the] lacklustre attitude of jail authorities”. But much more telling was the judicial attitude that “this court feels helpless in compensating her”. Why did the court feel so defeated? Arguably, this judicial attitude failed to deliver the necessary judicial oversight and accountability that it is mandated to provide.

In the article ‘The system’s revenge’ (March 5, 2020) by Michelle Shahid, published in these pages, the writer carefully highlights the issues and the state’s failure to meet its obligations under the local and international law for compensating for miscarriages of justice. She cites a study and notes that of all capital cases heard by the Supreme Court between 2010 and 2018, 39 percent resulted in acquittals. In other words, one in four cases is wrongfully convicted. This is shocking and calls for serious judicial reforms.

Society, too, must take responsibility for this ‘system’ and its consequences as it functions and operates in our name and for our benefit. In the case of failures, we must be ready to acknowledge them as a miscarriage of justice and compensate those who suffered due to no fault on their part. Justice also demands that actual perpetrators are found and presented before the courts. If the matter is filed away, effectively closed, it would be an injustice. We also need to learn from our failures and mistakes to not repeat them.

Investigation failures in the Noor Mukadam case deserve to be properly examined, offending officials held accountable and ‘the system’ corrected to avoid a repeat performance.

The Lahore High Court’s statement in the Rani Tanvir Bibi case about the jail authorities’ “lacklustre attitude” is all too telling, glossing over the probable violation of rights that it needs to focus on. It is true that Pakistan has no law to deal with a miscarriage of justice – the last such effort was made in 2017 when the Miscarriage of Justice (Compensation) Act 2017 was presented in the Senate. Since then, nothing has been heard about it.

The ministries of human rights and law need to ensure that we meet our international obligations. Pakistan is a signatory to the International Covenant on Civil and Political Rights (ICCPR), 1966, which under Article 14(6) guarantees a right to compensation for miscarriage of justice. It is hoped that the courts will reflect on how they are going to ensure that there are effective constitutional and legal protections in place that are guaranteed by constitutional fundamental rights.

One possible judicial option, following the Shehla Zia case (1994), is that the courts could invoke and incorporate the ICCPR as persuasive text that must be respected in judicial considerations of the cases of miscarriages of justice.

Brig (r) Asad Munir’s note to the then chief justice of Pakistan cannot be ignored. He said that he was giving his life “in the hope that the honourable chief justice will bring positive changes in the system where incompetent people are playing with the life and honour of citizens in the name of accountability”. It is the voice of many others who have fallen victim to this rotten system but could not speak up or be heard.

It is hoped that the case will move the conscience of those who are responsible for reforming the justice system, bringing positive changes to the justice system. Many such victims are screaming for reforms and need to be heard.

The authorities should compensate and support those who were wrongfully convicted to rebuild what remains of their broken lives and hold officials concerned accountable. All other things would simply be further injustices.