Pakistan’s criminal justice system has long been blamed for failing to deliver justice to the weaker groups and lacking the capacity to ensure fair trials. Last month, Supreme Court ordered the release of 21-year-old man named Muhammad Adnan who was arrested 11 years ago when he was charged with trafficking drugs — at the age of 10. There have been a number of cases in the recent past where citizens held under criminal charges for years were later found not guilty.
In April, the apex court acquitted a woman, Asma Nawab, and two others in a 20-year-old case related to killing of her parents and brother. The acquittal was based on grounds of “insufficient evidence”. It served as yet another reminder that such massive travesties of justice can so easily happen. The list of victims of the justice system’s inefficiency is long.
Concerns have been raised by several quarters time and again in this regard, but the judiciary under Chief Justice Saqib Nisar is yet to take any substantive steps to strengthen access to justice. On the contrary, the chief justice appears to be more interested in issues that do not fall under his domain.
Last month, a three-member bench of the SC headed by the CJ heard a petition filed by five young lawyers proposing judicial reforms by amending the high court rules.
The petitioners have called on the SC to focus on six areas to reduce the backlog in the civil justice system. These areas include framing of high court rules, reinterpretation of civil procedure code, publishing relevant judicial data/statistics, formulating a new judicial policy, enforcement of the law of costs, and enforcement of anti-perjury laws.
Legal expert Reema Omer terms the hearing of the case positive and says it is a good opportunity for the SC to respond to some tough questions about the delays in the civil justice system and more towards reform.
In June, while hearing the case in question, the CJ conceded that being head of an institution he had failed to “put his house in order”. “I admit openly that I have been unable to put the house in order,” the chief justice had acknowledged. Judges in the past have also spoken about fixing the loopholes of the justice system, but hardly anyone moved beyond lip service.
“Reform of the criminal justice system would require substantial reform of a number of institutions — which have historically been resistant to change — including the prosecution, the police and the judiciary, each of which has its own set of complications,” Reema says. She adds that there is also a need to revise and update the legislation related to criminal justice — both substantive and procedural.
“Take the number of judges, for example. Pakistan has on average 10 judges for 1 million people. The world average is close to 50.”
On the question of access to fair trial, she says there is resistance to the idea of “fair trial” in Pakistan, particularly for “sensitive” issues like corruption, terrorism and other serious crimes. “This has grown in the age of social media, where public outrage has reversed the premise of a fair trial and that of the presumption of innocence. People are more interested in vengeance and “exemplary punishments” than the idea of justice where guilt is established beyond reasonable doubt after a fair trial,” she says.
The myth of “speedy justice”
Some laws enacted in order to strengthen “speedy justice” are often marred by allegations of unfairness.
Reema says the Anti-Terrorism Act (ATA), the NAB ordinance, 23rd constitutional amendment/military courts etc. were enacted for speedy justice, but compromise on basic fair trials rights. “This entire understand of justice needs rethinking.”
In response to another question, she says the SC is one of many actors and stakeholders that must work together to “fix” the justice system. “But it is important for the SC to set the right narrative, which unfortunately has been lacking.”
Legal expert Reema Omer says people are more interested in vengeance and “exemplary punishments” than the idea of justice — where guilt is established beyond reasonable doubt after a fair trial
When asked whether or not the current judiciary is serious about “putting the house in order”, Reema says, “Instead of institutional reform, the SC has been more concerned with expanding its 184(3) jurisdiction — including to bypass the lower judiciary and impede on the constitutional domains of other organs of the state. The use of original jurisdiction — including suomotu — may deliver the desired outcome in a handful of cases, but it does nothing to strengthen the regular justice system that millions of litigants have to encounter outside of the Supreme Court.
Under-representation of women in judiciary
Female victims of violence are particularly failed by the justice system of the country time and again and it has been said that the system is biased against women because of lack of gender sensitization. “Much needs to be done on this front, both at an institutional level and at the level of changing mindsets and worldview of our prosecutors, our police, and our judges,” Reema says, adding that one major shortcoming is the abysmally low number of women in our criminal justice system, particularly in positions of leadership.
“We only have 5 per cent women judges in high courts; we have never had a woman Justice in the Supreme Court; and the Pakistan Bar Council — that regulates the legal profession — has never had a woman member.”
Reema further says that experience from around the world has shown a strong correlation in the number of women participants in the criminal justice system and the system’s capacity to better protect women’s human rights.
The writer is Assistant Editor, Daily Times. She writes on counter-terrorism, human rights and freedom of speech among other issues. She tweets at @AiliaZehra and can be reached at [email protected]
Published in Daily Times, October 30th 2018.