Daily Times

There has been an outpouring of public grief and rage over Mashal’s brutal killing since the tragic incident took place earlier this month. This collective expression of disgust and horror is important. It tells us that there is a major public demand for justice. Contrary to what some may say, there is yet this silver lining, this humanity within us as a society, that makes us call out for a swift righting of such gruesome wrongs. Alas, we cannot and should not remove the affective and the emotional from our reactions to crime. But what is within our control is to channel our reactions in a way that will actually bring about social change. I hope you will allow me, then, to grieve for Mashal – and many others before him – by thinking about our criminal justice institutions.

Mashal’s tragic murder has opened up a sobering window (yet again) into the plight of the two pillars of our criminal legal system: the police and the courts. To my mind, there is no clearer indication of the acute failure of this system than the manner in which the legal process in the case has unfolded thus far. Consider for a moment: a murder-by-lynching – committed in broad daylight, in the presence of a horde of eye witnesses as well as police and other interveners, and under multiple camera lenses – is being investigated by a ‘Joint Investigation Team’ (does that ring a bell?) of police, FIA, and military and military intelligence personnel, and is likely to be subjected to a trial or trial-like process in the apex court or at least under its direct and ongoing scrutiny. A lot is wrong here.

The first red flag was the legal genesis of the case in an atmosphere of bewildering speculation about the legal process itself. What is the best forum for this case, we asked. In civil law, it is commonplace to talk of this kind of ‘forum shopping,’ with litigants exercising their choice in framing a cause of action, pursuing different remedies, and electing a court for the resolution of their troubles. It is shocking, however, when the legal process for murder routinely begins to mimic civil law. Which forum offers a better chance of conviction, we asked. The anti-terrorism courts, the military courts, or the Supreme Court? It is quite revealing that the regular system of criminal courts did not even figure in our calculus. While turning all this in our heads, some of us were also wondering (myself included) why the Supreme Court was not taking suo motu notice of the case. Someone finally broke the silence and petitioned the Supreme Court to take suo motu notice (sort of an oxymoron).

More questions have arisen, lately, about the processes for investigation and prosecution. We simply can’t seem to trust the police with the gargantuan task of collecting credible testimonies and forensic evidence in a multi-suspect vigilante crime of this nature. Putting aside the instinctive suspicion with which we generally view the police, the DIG Mardan, Aalim Khan Shinwari, has confirmed our fears by publicly conceding the police’s incapacity and technological deficit in investigating the case alone. The involvement of the military somewhat allays our concerns about abuse of evidence. The absurdity and irony of this even-more opaque process of ‘military-policing’ is perhaps not entirely lost on all of us, but we seem to have little choice in the matter, especially given that some police officers are also implicated as aiders and abettors, if not principal parties, to the crime.

It seems, therefore, that our existing colonial-era criminal legal system is dated, at best, as it is unresponsive to the demands of a modern (albeit post-colonial) society. At worst, it is a non-institution. Neither civil society nor political society is oblivious to this reality. There has been much reform activity in the past two decades to fix this system, and massive donor-driven monetary injections to sustain this activity. Nonetheless, the two main reform pathways adopted so far only tend to skirt around the real problems of institutional failure. One of these pathways is ‘tribunalization’ – or the making of parallel structures, like anti-terrorism courts and military courts, to complement or altogether bypass the core structure of criminal courts. This may give an immediate impression of change but is a rather lazy, politically self-serving and meaningless type of reform that replicates original problems in addition to further complicating processes. The other pathway is ‘high-level’ reform – or the virtually exclusive focus on minimizing political interference in the upper hierarchies of institutions, like the High Courts and the Supreme Court in the judiciary, and the senior ranks in police organizations. This may bring about some positive change in the long-run at the macro level, and efforts in this direction should by all means continue. But high-level reform is unlikely to impact what are essentially ‘bottom-heavy’ institutional problems. Halt for just a moment to assimilate the staggering fact that the reform discourse on the courts and the police essentially excludes from its ambit more than 90% of both institutions, i.e. the ‘subordinate’ courts and the ‘subordinate’ thana police (never mind right now that we have unthinkingly adopted the hierarchical language of colonial difference for our institutions).

I want justice for Mashal as much as anyone else. And in this state of desperation, I am in favor of this completely spontaneous process of criminal investigation, prosecution and trial, provided it yields the only result it should: convictions and punishment under the law. But this bizarre and convoluted process should make us all pause in our tracks and ask ourselves: where are our institutions? what can we do to re-build them? how can civil society put pressure on political society and the state to deliver on institutional reform? For this, we, the civil society, have to start organizing and strategizing better. It is very well to demand legislative change. But what will new laws on the books by themselves do for law enforcement and institution-building? At the forefront of our political activism should be law enforcement. Not the kind of ad hoc enforcement we are witnessing now, but the kind that facilitates justice for all crime victims – not just those who capture our fury. For that, we have to become better citizens, the kind who are committed for the long-term and who want to see and contribute to institution-building. Not the kind who only sporadically bay for legalized torture and public hangings, and thus perpetuate the confusion and ad hoc-ism – and indeed the systemic discrimination from one crime victim to another – that we are currently witnessing.

The writer is a Visiting Research Fellow at the Institute of Development and Economic Alternatives (IDEAS), Lahore. She may be contacted at: maryam.khan@ideaspak.org