Laws catch flies but let hornets go free
By Javed Iqbal
The famous German philosopher and educator Wilhelm Joseph once remarked that the failure to invest in justice is directly related to the increase in criminal disorder. The more people feel there is injustice, the more it becomes part of their psyche. It is very true as public perception is stronger than anything.
We build opinions on the basis of our perceptions of things around. When something happens against public aspirations then the people start to raise questions about state institutions.
This has happened after the special ATC verdict in Sahiwal carnage case in which all the killers are exonerated by giving them the benefit of doubt. Now, the question arises that why the benefit of the doubt is always given to the accused and the hapless victim has to suffer. Why accused is favourite child of court.
In another move, LHC granted bail to a former PM on medical grounds. These two examples prove that law in Pakistan is weak before the mighty while the impecunious strata have to move from pillar to post for justice.
Now the question is that we would continue to operate the state system the same way we had borrowed from former masters or it will be transformed to ensure legal equality and judiciousness?
After the British withdrawal from India in 1947, the country’s forefathers should have had introduced a free and fair system of governance; but it could not happen. At least seventy two years, we are practising the same anglo-saxon legal system that was devised for a slave nation during the colonial era.
To cool the public sentiments, the then rulers made tall claims and boasted that the culprits will be punished. But what the people saw was quite the opposite.
On the Sahiwal incident verdict, Punjab Law Minister Raja Basharat also made it clear that an appeal would be filed against this decision and it will be vigorously pursued.
Senior lawyer and scholar Dr Shah Nawaz Tarar said the fault is with the system, not the government. This system was adopted and implemented in 1860 to control people’s power.
A strong criminal justice system was created in shape of police, prosecution, jail, magistracy and the judiciary which were integrated into an overall system of governance.
It is the right time that people and the media should raise voice to change this outdated and archaic system.
According to my humble opinion, Tarar said, the system is capable of punishing the oppressed while the powerful oppressive breaks its trap very easily. This British era legal system has so many flaws that no free nation would allow it to be executed, even for a single day, after getting independence. Sadly, it was not only implemented here but also successive governments remained proud of it.
This system can be judged through a letter written by the last Emperor of India Bahadur Shah Zafar to a local magistrate in Delhi in which the Mughal King had demanded Ghalib’s release but was rejected by a petty officer. Asadullah Khan was emperor’s friend and a famous poet.
An additional D&SJ on anonymity said that when the criminal justice system working in Pakistan is closely studied, it is found that more than 450 kinds of rules and regulations were enforced with the magisterial system. The magistrates used to enforce the law and remain close to the public to glean facts.
But under the 1996 judgment of the Supreme Court of Pakistan, the judiciary was separated from the executive and a new system was launched in 2001, the role of the magistrate was abolished and its powers were divided between the judiciary and the police. A major chunk of judges time is consumed hearing 22A and 22B cases, he complained.
A senior administrative officer said the founders of the law did not realize to fill the vacuum that the British imposed to run the system and to ensure the rule of law. As a result, the governance was badly affected and an anarchy-like situation was developed in the society.
This administrative vacuum resulted in seizure of government and private properties and poor writ of the state. In the ensuing situation, neither the trust of the independent judiciary was restored nor the police turned up to the expectations of the public.
Both of the horses of the criminal justice system started to behave in a gubernatorial manner.
When the Pakistan Tehreek-e-Insaf government came into power in 2018, people attached many expectations with it, including the introduction of radical changes in the criminal justice system. But after more than a year or so, there was no attempt to tamper with this odd legal system to make it public-friendly.
Various legal experts, scholars and executive officers agreed that the system could not be run in the country. As soon as possible, it should be reformed so that it could reduce people’s problems. Monitoring of this system from interrogation to punishment would not only reduce the police monopoly but also keep a check on it.
Each inquiry should come to completion under strict monitoring so that the tradition of influencing the investigating officers could be eliminated.
Likewise, the courts’ powers to release the accused by giving them the benefit of doubt are also needed to be examined.
Besides, law testimony should also be examined. We should find a solution to this problem in which people do not dare to testify against the powerful players. When examining the criminal justice system, the use of scientific and forensic evidence in legal testimony should be enhanced and the protection of the lives of witnesses be guaranteed.
Likewise, unnecessary and indirect litigation should be discouraged. Before a court starts hearing any case, it should be noted that the case was not registered under some malafide practices. If so, the plaintiff should not only be fined but also punished. In cases, where the court grants bail, it must ensure that the state or its citizens are not suffered. There should be a strict code to issue status quo or grant bail.
The powers of Justice of Peace may be withdrawn from both the police and the judiciary after due consultation and given to a high-powered commission comprising of people of good repute.
A strict code of conduct should be devised for the bench as well as the bar so as to avoid unnecessary postponements, false testimonies, swearing and documentation. The minimum and maximum timeframe should be given to any judge. In this way, a natural nexus among crime, money and powerful mafias could be curtailed.
There should also be a change in the system of prisons in which the powerful and the rich manage to avail themselves of the facilities while the hapless and poor prisoners continue to rot there. The mighty who manage jailers get concessions in jail term. There should also be state-of-the-art medical facilities in the jail to avoid shifting of influential prisoners to private hospitals. The courts and prisons may have an online link to avoid unlawful execution of two brothers Ghulam Sarwar and Ghulam Qadir who were later declared innocent by the apex court.
Holy Quran says “O you who believe, stand firm for justice even against your own selves”, An Nisa.