We have lost the underlying purpose and objective of a legal system
It is easy to forget what the focus of the criminal system or social justice should be, and indeed, we have forgotten.
A criminal justice system should ideally be run to protect the fundamental human rights of the people in it and pursue social regulation, safety, equality and fairness. The notion “a person is presumed innocent until proven guilty” is echoed relentlessly precisely because it stems from important principles and underlines the whole point of why we have a civilised legal system rather than, say, unsupervised duels or large scale executions. Article 10-A of the Constitution of Pakistan furnishes a fundamental right to every citizen of Pakistan to have a fair trial and due process. The principle narrated by the higher courts is that the case against an accused should be proved not just beyond reasonable doubt but “beyond the shadow of reasonable doubt”.
Yet the law being practiced in Pakistan is more along the lines of the “dog’s law.” A founder of legal positivism, Bentham had attacked the common law system in the 19th century for precisely the reason that there seemed to be “no public shared standards for assessment of rules, law, actions, or decisions”. The doctrine of precedent, in Bentham’s words, was ‘dog law’ as “whenever your dog does anything you want to break him of, you wait till he does it, and then beat him for it”.
It seems we have indeed lost the underlying purpose and objective of a legal system and instead the focus even by the modern state largely seems to be on punishment and retribution rather than protection. Blindly pursuing laws that wait to punish the dog leads to the direst repercussions for those who are innocent.
Pakistan is a country which more than often has incomplete or irregular police investigation. There is lack of legal aid and we don’t have enough funds to pay defence lawyers appointed by the state a decent salary to represent poor people implicated of dire crimes
Pakistan is a country which more than often has incomplete or irregular police investigation. There is lack of legal aid and we don’t have enough funds to pay defence lawyers appointed by the state a decent salary to represent poor people implicated of dire crimes. We have the death penalty for twenty seven offences. We have jails with very poor conditions where prisoners will either get attacked or tortured by other prisoners or guards or where due to the poor speed of the trial, they will spend years of their life on death row — a phenomenon now recognised in law to constitute inhuman and degrading treatment. The prosecution prides itself on convictions no matter of course in what way they are obtained. Yet the mindset in Pakistan is not geared towards working harder to uphold rights, reveal the truth and pursue justice. It is simply geared to punish no matter what the circumstances.
This need to punish, to presume guilt unless proven otherwise, to implement only dog’s law, is silhouetted in many of our laws and legal judgments today. There are several judgments by our special courts where the judge has acknowledged that transactions involving drugs are benefiting the pockets of largely established drug gangs but in the same breath sentenced the innocent mules including women and children used by these gangs to death stating that they must set an “example” and prevent stigma to the country, ignoring the fact that these gangs have escaped scot-free and enjoying the proceeds of their crime.
Figures published just one year before Pakistan’s five-year moratorium on executions in 2008 demonstrated that at least 40 children have been awaiting execution in the death cells of Sargodha Jail alone.
Pakistan is one of the nine countries to have carried out execution of a juvenile too, despite having a law that eliminated death penalty for juveniles. The most infamous example of the state’s affinity with dog’s law may perhaps be the Protection of Pakistan Act 2014. This encompasses that while the government may not disclose the grounds for detention of a suspect for security reasons, the burden of proof clearly lies upon the suspect according to Section 14. In Section 2 an ‘enemy alien’ is defined as one whose identity is “unascertainable as a Pakistani.” Many from the lower income strata live without proper proof of identification. They would be dismayed to find themselves to be “enemy aliens” according to this definition because they can be detained by the state indefinitely and even shot on sight by certain members of armed forces above a certain grade if found committing a “schedule offence” — which includes crimes not just pertaining to terrorism.
The state has to duty to protect the rights of its citizens in a number of ways, social, civil and political. Yet the only relationship the state seems to have with its people is that of the punisher, admonisher
In alleged blasphemy offences, charges are levelled on the basis of personal grievances and ideologies are fired up to seal the fate of the accused before the matter actually goes to trial. The fact that the case was doctored for personal agendas and there was in actuality, no disrespect of religion, may be grossly obvious but the case may be heightened to one ridiculous drama very quickly. Inspired by the state, the public dangerously steps in sometimes to execute its own brand of vigilante justice like it did with beating and burning Shahzad Masih and Shama Bibi in Kot Radha Kishan.
The state has to duty to protect the rights of its citizens in a number of ways, social, civil and political. Yet the only relationship the state seems to have with its people is that of the punisher, admonisher; the one holding the cane and its citizens are now more than often the victims of this.
The profound need to punish can under no terms be justified under a religious, or “eye for an eye” concept. The principle of legality represented in the two postulates of nullum crimen sine lege, there is no crime without law or nulla poena sine lege, there is no punishment without law, can be directly found in the basic sources of the Quran and Sunnah when examined carefully. There is also a strong presumption of innocence under Islamic Shariah Law. In the authority of the Sunnah we find the direction that it is better for an official to pardon erroneously than to punish erroneously. Further, any ambiguity, shubha, in Islamic criminal law caused by acts of torture or unfair trials prevents judicial punishment in any form. The seriousness of this rule can be understood by the fact that it applies to both, tazir and hadd crimes.
Yet this ideology is no way upheld or found in the state’s attitude towards the people it races to punish and castigate, ignoring those dismally caught in the crossfire. The movie Minority Report portrayed that unchecked big-data analysis threatens to bring about a future in which judgments of culpability are based on individualised predictions of future behaviour. We are not only now slowly reaching a technological age where this is not impossible but the need to punish seems to be so great that the state punishing people from crimes it thinks they might commit also funnily but eerily seems possible.
Individual paragraphs are eloquent and confident but i am afraid the piece as a whole is incoherent and pointless. the entire point of criminal law is to punish and/or reform. has to be heavy handed. and people, especially aunties and journalists, often judge serious crimes themselves instead of waiting for a Court of Law to pronounce upon it. so whither presumption of innocence? investigation can be improved, but then what has juveniles on death row have got anything to do with this all? Juveniles often require exceptions, not generalizations otherwise applicable to the adult accused. in other words, the author should edited/revised the piece after jotting it down.
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