he ongoing crackdown on the Pakistan Tehreek-i-Insaf, its leaders and workers has once again exposed the susceptibility of the criminal justice system to be used to cut down to size an ‘unacceptable’ political actor or entity.

There can be no cavil with the principle that states must punish individuals who commit crime. However, accusations alone do not merit punishments; a person is innocent until proven guilty; and only courts can convict the accused, are equally well settled principles of law and justice enshrined in our constitution.

What is being witnessed right now, and what has been repeatedly witnessed in erstwhile regimes, is that FIRs, which are mere criminal complaints, are treated as adequate grounds to imprison political opposition and the powerless for extended periods.

Incarceration is a criminal punishment. Normally, it should only occur subsequent to a conviction by a competent court, as only courts have the constitutional power to handout criminal punishments. Pakistan’s bail laws, in complete contrast to how the concept of bail operates in most developed jurisdictions, facilitate the incarceration of political dissidents and the powerless over mere accusations.

In other jurisdictions, individuals charged with an offence have the right not to be denied reasonable bail without just cause, regardless of the offence they have been accused of. Since they have only been accused and not convicted, the assumption is that they should not be imprisoned at this stage unless there is a compelling reason to not set them free. Such reasons include there being a substantial likelihood that if granted bail, the accused will abscond or pose a threat to public safety.

In contrast, laws in Pakistan categorise several offences as non bailable. Individuals accused of non bailable offences do not have a right to bail. Bail for such offences is deemed a concession available based on very narrowly defined grounds, which include there being no reasonable grounds for believing that the accused committed the offence in question.

Practically, proving that there are no reasonable grounds for believing that the accused is guilty of the non bailable offence immediately upon the accused’s arrest is an uphill task. The police and prosecution, if motivated, can always cobble together witness statements and circumstantial evidence to demonstrate the need for further investigation. Furthermore, trial courts are typically prosecution friendly and reluctant to provide relief to the accused.

Therefore, the moment an FIR for a non-bailable offence is filed against a person, the standard principles of justice are flipped, and the presumption becomes that the accused will be imprisoned during the duration of the trial, which usually lasts for years, unless the accused can prove that there are reasonable grounds to assume that he is not guilty – imprisoned until proven innocent.

The draconian nature of Pakistan’s bail regime is further compounded by the political nature of law enforcement agencies. While the police are expected to carry out preliminary due diligence to ensure that the complaints are merited, cases against the opposition, political dissidents and the powerless are typically registered on the whims of the sitting government and the powerful.

Since the key motivation in filing complaints against political opposition and dissidents is to lock them up, the prosecution’s emphasis is not on the trial to be concluded, as the evidence against the accused is mostly substandard, the trial proceeds at a snail’s pace.

The emphasis by the prosecution is rather on the denial of bail to keep the accused imprisoned. In consultation with the police, this is accomplished by including hefty non bailable offences in the FIR. If a bail is somehow granted after some time, the initial FIR is topped up by more FIRs and the accused rearrested.

Sitting governments seem to think of their right to prosecute the opposition as a legitimate tactic to eviscerate the opposition – after all, what was the point of withstanding the hardships while in opposition if one cannot do the same when in power. Sitting out of power for prolonged periods of time therefore becomes an existential threat; it results in consistent persecution and provides political parties a substantial incentive to make any deal that results in them coming to power.

Historically speaking, the draconian bail regime predates Partition. It was enacted by the British to keep the local population in check. Despite all the talk of gaining independence, no government has shown any interest in amending the same, partially because of chronic short termism – why let go of a weapon even though it is almost certain to be used against those currently in power once they are in opposition.

This standard bail regime, as draconian as it is, has been topped up by several special laws, like the Anti-Terrorism Law and the National Accountability Bureau law, which make it even easier to keep the accused indefinitely imprisoned on mere complaints. In fact, the NAB law specifically excludes bail for the accused and envisions imprisonment until acquittal. The answer to whether these laws have caused terrorism or corruption to go down, which was the ostensible objective for the conferral for such wide ranging powers, is obvious.

One does not need to be a constitutional scholar to determine that laws that allow for prolonged imprisonment on mere complaints and place the burden on the accused to prove his innocence to get out of jail are at odds with the fundamental rights our constitution guarantees. The superior courts, while being content with advocating for an expansive interpretation of fundamental rights in other areas, seem to have ignored the actual elephant in the room or condoned the same.

It is beyond high time for a reformation of our criminal justice system to ensure that its main purpose is not to allow political control through locking up of the ‘undesirables’ over mere accusations, but to provide substantive justice in line with the provisions in our constitution.

The writer is a lawyer practicing in Lahore. He can be reached at ali.darugar@legharianddarugar.com