Daily Times

Most of us who are avid viewers of English movies and serials are familiar with, “You have the right to remain silent. Anything you say or do can and will be held against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?” These are popularly known as the Miranda Rights in the US.

Similar caution warnings are also mandatory in other countries, though the wording may and indeed does, differ. Basically, the Miranda or Caution warnings are a safeguard or constitutional or statutory protection provided to a person who is going to be arrested and placed in custody by the police, against self-incrimination. Any statement made by the suspect without being informed of his rights is inadmissible in evidence in most jurisdictions.

In Pakistan, we have a different mode of arrest. Instead of issuing a Miranda warning, our police issues a ‘danda warning’ when placing a person in custody. Some argue that it is certainly more effective than the warnings issued by other civilised countries, as it enables our competent ‘middle-pass’ investigating officers to procure evidence to implicate the suspect by his own ‘voluntary confession’ and, of course, keeping him away from his counsel and family has the added benefit of speeding up the process as well as providing an incentive for him to prefer to go to a judicial lock-up rather than enjoy the hospitality of the station house officer (SHO) and his comrades.

Let me share with you a joke about how investigations are carried out in our region. Once upon a time, it is rumoured, a king lost a prized and extremely valuable deer. All sorts of investigation teams were called in from all over the world but none were successful in tracing the deer. A wise man suggested that the Punjab Police may be called in to assist with the seemingly impossible task. The king took his advice. Within twenty-four hours, a handful of our extremely efficient police investigators appeared with a screaming and crying elephant who, on the delivery of every chhittar (leather shoe) profusely shouted, “I’m the king’s lost deer, I’m the king’s lost deer.” What is the point of cumbersome warnings if they only serve to impede ‘justice’!

But had the elephant been told that he does have some constitutional rights and statutory protections, even in this country, he might have decided to remain silent, and yes, endure the extreme torture, until someone came to his aid.

Our constitution provides us with safeguards on arrest and detention, though not exactly labelled or termed Miranda or Caution warnings, but a definite, enforceable, fundamental right. This right acknowledges the right of an accused to confidential legal advice, as well as the right to be informed of the reasons for his arrest. Article 10 (1) of the Constitution reads: “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.”

Further, Article 13 (b), which gives a person the protection against self-incrimination, states that no person shall be compelled to testify against himself. This simply stated means that the elephant could not legally and constitutionally have been forced to confess that he was in fact the king’s deer.

The Qanoon-e-Shahadat Order, which is the main law governing the law of evidence, gives an accused the right not to incriminate himself. No confession obtained by the police during investigation, whilst he is in custody, is admissible in a court of law. The only confession that can be used against an accused is one that he voluntarily makes before a magistrate after being informed of his rights. It has been held in numerous judgments that the accused has the right to be represented by and to have access to a legal counsel whilst in police custody during investigation and any refusal of the police in not allowing the accused to meet his counsel or relatives is wrong and unjustified and in violation of his rights. Unfortunately for us, the practice in vogue for the common man is totally against the law and precedents established by the superior courts. It is however drastically different for men with clout and money, who are allowed all sorts of amenities and facilities including, but not limited to, the use of their homes. There goes one basic fundamental right that confers equality before the law on all citizens of Pakistan, not to mention that Islam is clear on the fact that no one person shall take precedence over another. And we thought we lived in the ‘Islamic Republic of Pakistan’.

The problem with our fundamental rights is that they are not really that fundamental and the guarantees have to be enforced through the courts. What needs to be done is that the inspectors general of the police of all the provinces need to ensure that the policemen making the arrest adhere to the guarantee and safeguard provided to the accused. Strict action needs to be taken against those who violate these provisions. Maybe, a body of language, similar to the Miranda warning, needs to be adopted in all regional languages as well as Urdu and English in conformity with our own laws and the constitution, and then implemented by framing proper rules and regulations in this regard.

Based on my experience with the police, and not to mention the state of current law making, this could be an exercise in futility and more a topic of academic debate. What really needs to be done is for our courts, starting from the magistrate and going to the very apex, to stop being tolerant and dismissive of the excesses committed by public functionaries. It is not that western societies are more ‘civilised’. Had that been the case, there would be no Guantanamo Bay or Abu Ghraib or Prison Ships. It is simply that they have a more efficient system in place for accountability in their own countries. Maybe it is time we told the elephant that he has rights, duly enshrined in the constitution of the Islamic Republic of Pakistan.

The writer is an advocate of the high court