Daily Times

Pakistan’s courts are failing to deliver justice expeditiously. The country’s prisons are full of those who have committed petty crimes and who spend years there awaiting trial. There is no need for such cases to clog up the wheels of the criminal justice system. Moreover, can we really consider it morally justified to lock up the young or those with mental health issues just because of a minor misjudgement on their part?

Would it not make more sense if the authorities were not exactly to turn a blind eye — but simply chose counselling over prosecuting petty criminals? For this would do away with the need to jail the latter alongside hardened prisoners; an experience that may have a long lasting impact on the younger generation or the already vulnerable. And at the end of the day — what does it really achieve when we bang up a juvenile for stealing a loaf of bread, for example?

Though this is not just about the young. How can a person, who has no means of making a living, eat? Or if that person has a wife, parents and children to support; what then? What if he cannot see a way out? He may well turn to crime to feed his children. Yet the point remains that this would not be a pre-meditated act.

I would, however, like to point out that in no way do I condone theft. But I would also like to stress that I do firmly believe that, as a society, we ought to not treat such crimes of necessity as regular offences. Though this naturally raises the question of proportionality. Meaning that we will have to ascertain whether or not the food stolen, for example, was in keeping with personal emergency requirements, as opposed to seeking profit. Which brings us on to the matter of who will be tasked with setting these determining boundaries?

The criminal justice system is based on the premise of innocent until proven guilty. Yet there is surely something wrong with this picture if it sees the same legal rules apply to someone who steals — so as not to starve — as to someone who steals billions of taxpayers’ money.And the bitterest irony is this: the more a person steals the greater their chance to enter into plea bargains and ultimately walk free; as if all their sins have been washed away with holy water to render them saintly.

The more gullible or powerless an individual — the more the criminal justice system is likely to work against him. This is because without adequate representation there remains a risk of not being afforded due process by either the police or the institutions of justice themselves. It is imperative that defendants are fully apprised of their rights.

Pakistan’s criminal justice system is based on the premise of innocent until proven guilty. Yet there is surely something wrong with this system if it sees the same legal rules apply to someone who steals — so as not to starve — as to someone who steals billions of taxpayers’ money

That a number of young and those suffering mental health issues have been executed points to a major flaw in the criminal justice system.  As it stands, it does rather seem as if the latter is designed to assist and bail out the rich and powerful, while leaving those who do not have the means to pay for adequate legal representation to their fate.

It is a sad truth that, here, in our part of the world, it is not uncommon for the police to tamper with evidence, or to force false confessions out of people; thereby perverting the course of justice. Yet here the burden of responsibility does not fall on the individual. For what is one supposed to do if the lives of his nearest and dearest are under threat unless he admits to a crime he has not committed?

Then we have the practice of show trials, which is yet another travesty of justice.

These are usually conducted to garner political support. Meaning that when a suit is filed against an influential individual, he will subsequently set out to portray himself as bowing down to due process; as a true supporter of the rule of law. But this is nothing more than playing to the cheap seats. And once the pantomime is over he wears the borrowed robes of the priest’s cassock and recasts himself as the wounded victim.

For the underprivileged or those without connections — they will find themselves serving a custodial sentence, regardless of the seriousness of the crime. Yet it is an entirely different story for the rich and powerful. They roam freely regardless of what they have done. And so it is that criminals are respected and valued while the police and other institutions are beholden to them.

In order to redress the balance towards equality of due process — we must modernise our criminal justice system, while reducing the bureaucracy involved so that it comes more efficient. Of course, no structure is perfect. In other words, innocent people will continue to be wrongfully imprisoned. Yet the power of balance has to shift from the police to the people; so that the latter can testify before the courts without the risk of intimidation.

This is the least we can hope for.

The writer is a corporate lawyer and an alumnus of SOAS, University of London. He specialises in corporate governance issues and operates a law practice in Lahore called Sami Shah & Partners with offices in Toronto, Canada and Palos Verdes, California, USA. He can be reached at sami@samishahpartners.com

Published in Daily Times, November 3^rd 2017.