Is Pakistan turning into a Security State with a failed judiciary?
"It is better that ten guilty persons escape than that one innocent suffer",
The criminal justice system of Pakistan also adheres to this basic principle expressed by the English Jurist William Blackstone. Our judicial system is a direct offshoot of the English justice system. We even retain many of the laws enacted during the British colonial era. The Penal Code of 1860 has been severely amended and changed since its initial enactment but the fundamentals it is based on stay the same. These laws were enacted by a colonial ruling power to rule over its subjects, the fact that we continue to govern in the same fashion says a lot about our state.
In light of this principle, I implore to you, has our judicial system really failed? We all seem to be in agreement that it has but we may disagree on the reasons for this failure. The need for military courts rests on the argument that terrorists manage to weasel their way out of the existing court system and there is a desire in the nation for swift justice.
The first problem with that argument is the fundamental definition of a ‘terrorist’. The operation Zarb-e-Azb is being conducted under the assumption that anybody who has not vacated the area the operation is taking place is in is deemed to be either a terrorist or an aider or abettor to terrorism, especially able bodied men of a certain age. The military operatives act under similar protocols in dealing with the rebels in Balochistan. Our army protocols during 1971 in Bangladesh were even worse. During the Swat operation, thousands of people were rounded up and locked up. Presently, members of the Mehsud tribe are specifically being targeted. A judicial system would never hold relatives of a criminal or a terrorist’s tribesmen guilty of the individual’s crimes.
The judicial system cannot work with such assumptions. The presumption of guilt is contrary to the core value of justice. In front of the courts, you are innocent until proven guilty but the establishment of Pakistan wants to invert that, in cases of terrorism the accused would be deemed guilty until proven innocent. The onus of the burden of proof lies on the innocent, which is against the principles of justice and fundamental rights enshrined in the constitution. And International Law, which not have too much bite right now but the dwindling principle of state sovereignty in the United Nations may change that.
We keep undervaluing the constitution in Pakistan, which is inevitable considering the constitution of Pakistan has close to 300 articles compared to a mere seven articles and 27 amendments in the U.S. constitution. The English system simply enshrines the human rights and works on the principle of the supremacy of the parliament. The constitution of Pakistan is based on a trichotomy of powers, in which the legislation, the executive and the judiciary all act as checks on each other but the role of the military establishment historically in the political arena of Pakistan can also not be ignored.
The three fundamental power structures in the constitution are constantly undermined, along with the entire constitution, within that context amending the constitution may not be seen as such a big deal. The Prime Minister even declared that there is no need for a significant debate in the parliament after the APC(All Parties Conference); the members of each party are not allowed to vote contrary to party lines rendering the National Assembly meaningless in this scenario.
However, what people have not focused on is that this amendment may prove to be ultravires for the Parliament. Beyond the potential for the Supreme Court to strike down the amendment, it may also go against the United Nations and International Law. Pakistan is a signatory to the Universal Declaration of Human Rights. Punishment based on the presumption of guilt may be held to be against the right to life and the dignity of man. The idea of military courts goes beyond many of the articles of the declaration including the right to life, restriction of torture, right to liberty, right to equal protection of law, rights against arbitrary arrest or detention, right to a fair and public hearing and the right of the presumption of innocence.
The United Nations specifically enshrined these rights on all human beings after their experience in World War II. We may be able to suspend human rights within our own constitution but there is nothing stopping aggrieved parties from going to the International Criminal Court for recourse.
We are walking down a path in haste without fully calculating the potential repercussions for the people and the country. Years down the line if an international investigation reveals the extent of extra-judicial steps taken by the country, it would ostracize our state from the international arena and the people responsible may even be trialed as war criminals.
Worst case scenario, the suffocation of political space in areas such as North Waziristan and FATA may even kick in the right of self-determination of the United Nations Charter. We seem to have not learnt our lessons from Bangladesh; we similarly handed over all the political space for the military and proceeded to hand out swift justice on the streets. The situation in FATA and North Waziristan may not be comparable to Bangladesh for now but not reevaluating our policies in these regions, and Balochistan, shows a clear lack of foresight.
Decisions affecting the future of a country should not be taken in such haste, worse they should not be taken based on the emotional reaction of a nation to a tragedy. The attack on the Peshawar School was the worst terrorist attack ever in the history of Pakistan but it should have marked a watershed moment for us to correct our policies in the long run rather than thirst for retaliation.
We are asking the right questions of the judicial system but for the wrong reasons. In Pakistan, our inclination is to do away with things rather than fixing them. We banned Youtube on the pretext that it contains a blasphemous video. We banned Basant on the pretext that a few people died from kite flying. We are now doing away with the judicial system on the pretext that it is incapable of meeting out swift justice, without addressing the real problems of the judicial system.
Any criticism of these decisions is rebuked by a call for alternatives. We need to first realize whether we are willing to do away with all the fundamentals of principles of justice and human rights and act contrary to international law? If we are not then we can have a conversation about alternatives. The first of which has to be a long term ideological war and a clear state policy against militancy and extremism of every kind but specifically pertaining to the judiciary, there is a growing need for judicial reforms; the first is the judge.
The judge is the most important part of the judicial system. However, within the legal fraternity the proverb goes that a new judge is akin to a bus driver, just like the first ten accidents by a bus driver are considered a part of his apprenticeship, the first few hundred cases for a judge are considered a part of his apprenticeship. The severe lack of quality judges at the lowest level of our judiciary means all parties constantly try for their cases to reach the highest echelons of the judicial system. The Supreme Court of Pakistan should not be hearing any cases which are not of the utmost importance to the country or the state of the legal system in Pakistan. The Supreme Court in Pakistan should be a body mainly reserved to uphold and clarify points of law but I have personally witnessed Supreme Court judges go beyond the rules of procedure and listen to cases involve petty theft and see points of evidence argued before them. These cases are inevitably sent back to the lower courts and the process restarts all over again.
The judges need to be educated and their induction into the judiciary needs to be revamped. According to a unverified statistic from a high profile lawyer, more judges are inducted every year in Punjab than Police officers. In a country with such low standards of education you cannot reasonably expect hundreds of quality judges to come out of the system every year. These judges inevitably worsen the judicial system. We constantly see politicians and anchors calling for more courts and more judges without realizing that that simply clogs the system more. Even when these judges are not corrupt, they are completely inept leading to the high court being clogged with appeals.
If we do not take the legal education of our judges seriously then we will be stuck in this infinite loop of cases reaching the Supreme Court then being sent back to the lower courts; making any idea of swift justice a pipe dream.
Even when these judges come out with good judgments, we lack the capacity of the enforcement of the law. A judgment in favour of an aggrieved party is practically useless for the party infront of the other party with political clout. You cannot take a judgment to the police officer and ask them to enforce the judgment. The depoliticisation of the police is crucial to ensure that the judgments are respected by everybody in Pakistan. The reason we constantly call for the military for internal matters is the completely inept structure of our police. Technically, the police is our protector within the borders but we still look to the army for the most basic of police functions.
The political reign of Chief Justice Iftikhar Chaudhry has also tarnished the reputation of the judiciary. The judiciary and the justices should always remain apolitical in all scenarios. During the election campaign of 2013, phone calls leaked of political leaders asking justices to sway decisions in their favour but there was no action against these people. It may sound counter intuitive to even say it but along with the police, there is also a need for the depoliticisation of the judiciary.
Specifically for the cases of terrorism, if we have educated and depoliticized judges they will hopefully refuse to entertain any cases that do not involve terrorism in the anti-terrorist courts. If we are to build these courts as a parallel justice system for the sake of swift justice, why not have judges that are aware of the laws and principles of justice rather than military officers, who may be persuaded by their personal experiences rather than act impartial. A man who has seen his fellow soldiers murdered is more likely to be keen to send people to the gallows rather than an independent arbitrator. If the government can ensure the safety of military officers acting as judges than it can surely ensure the security of the judges acting as, well, judges.
We also live in a technologically advanced world; the identity of these judges could also be protected by the judges presiding over the cases through a video conference with their identity hidden to everybody involved. We must really stop taking decisions affecting the policies of the state under threats of mob violence. If that is the case then the state must simply wrap itself up and declare a state of nature in the country. What is the point of having laws if there is no writ of the state?
The establishment of military courts is a huge step by the state, it has been taken too lightly and pushed forward with little debate but it may prove to be disastrous in the long run. The question then is ‘are we willing to sacrifice our future for our past’? I do not know about you but I for one do not wish to live in a security state.