Challenges

The right to fair trial is intrinsic to strengthening the rule of law. It is the ‘gateway’ human right which makes defense of other rights possible. Protection of human rights – including the right to life and liberty – hinges on procedural fairness and proper administration of justice. Without an effective recourse to due process, there is no protection for those whose rights are violated. It also strengthens democratic norms by placing limits on the powers of the state that may be exercised against its citizens, and underscores the legitimacy of the state’s system of justice by ensuring that the institutions which provide justice, act in accordance with the laws they are mandated to uphold, and above all, it minimizes the risk of miscarriages of justice, which might deprive innocent citizens of life, property or freedoms. This makes it all the more important in criminal cases where far harsher penalties apply to convictions.

Recent politico-legal developments in Pakistan threaten the protection of this right under the prevailing criminal justice system. Thirteen years of war, 50,000 deaths, and $102 billion in economic costs later, the insurgency in Pakistan has finally begun to influence its legal system. In October 2013, the parliament passed the controversial Pakistan Protection Ordinance, a law which subverts basic principle of natural justice, including presumption of innocence. Critics have warned against the law turning Pakistan into a “police state”.  In December 2014, Pakistan lifted a 7-year old moratorium on the death penalty and till April 2015 had executed a 100 inmates over a period of 4 months. Human rights watchdogs spoke out against the “manifestly unfair trials in many cases that fall well below minimum standards set by international law” which were feeding this “assembly line of death”. The case of death row prisoner Shafqat Hussain had been a particular highlight of this debate, who was reportedly a juvenile when his trial was held and his conviction was based on a coerced confession. While the end of the death penalty suspension previously applied only to terrorism cases, on the 10th of March 2015 it was ended wholesale, leaving the approximately 8,500 prisoners sentenced to death open to execution. In January 2015, the parliament amended the constitution and the Pakistan Army Act to establish military courts authorized to try civilians for terrorist offenses. These courts became operational in May, this year.

While these laws ostensibly apply only to cases of terrorism, the attendant vague definitions of what constitutes such offenses carries the risk of unlimited scope, and ultimate ingress into ‘mainstream’ crimes. A study conducted last year finds that “86% of those sentenced under the ‘terrorism’ laws had nothing to do with terror at all”. These convictions ranged “from a 14 year old youth accused of kidnapping to another young man accused of killing his own father in a dispute over inheritance”, many of them resulting from “wholesale curtailment of many fundamentals of a fair trial”. These developments represent an increasing pressure on the criminal justice system to deliver speedy, expedient convictions that serve national security imperatives rather than the principles of justice. If this trend persists, the tolerance for due process and the right to fair trial is likely to shrink even further, at the policy, institutional and cultural levels. It is pertinent to note that the establishment of military courts – perhaps the single-most significant rupture in the history of civilian criminal justice administration – was passed unopposed by both houses of parliament.

According to Human Rights Watch: “Many, if not most, of the over 7,000 prisoners on death row have been convicted through a judicial process that does not meet international fair trial standards”. Common violations include un-recorded arrests, custodial torture, coerced confessions, non-disclosure of evidence (to the accused), pre-staged identification parades, etc.

Religious minorities and women accused of crimes are especially at-risk for violations of their right to fair trial and due process. Trials of non-Muslims are commonly characterized by mob violence and intimidation, torture, extra-judicial killings, weak/biased investigation and other violations of their rights. These individuals are often from low-income strata, and their limited financial and social capital compounds their vulnerability to rights abuses. In 2013, a mob set fire to 147 houses belonging to Christian families living in Joseph colony when a resident was accused of blasphemy. Women are equally vulnerable to such abuses. According to a Human Rights Watch report, more than 70% of women in police custody report physical or sexual abuse at the hands of their jailers. The report also finds that women are detained for days in police lock-ups without registering an FIR, or produced before the magistrate within the 24-hour period stipulated by law. The police often file false and inaccurate FIRs or delay the registration of FIRs altogether to extort prisoners for bribes, which women are more likely than men to find unaffordable. Missing FIRs eliminate the possibility of pre-trial bail. The majority of women prisoners were also found to lack access to legal counsel. Pre-trial detention was prolonged for women because they found it more difficult to secure bail, surety and release. Over 1,000 women languishing in jail continue to face these violations of their right to fair trial and due process.

There are opportunities for reversing this trend through policy reform. First, entitlement to a “fair and public hearing by an independent and impartial tribunal” was included in the Universal Declaration of Human Rights adopted by the UN in 1948. In 2010, Article 10-A of the Constitution of Pakistan, made the right to fair trial and due process an inalienable right for all citizens in Pakistan. Second, in 2008 Pakistan signed the International Covenant on Civil and Political Rights (ICCPR) and ratified it in 2010. Articles 14 and 15 of this treaty provide 16 concrete minimum guarantees that constitute the right to fair trials.  Third, a growing body of case law, (especially superior court judgments) indicates that principles which embody the notion of fair trial are well rooted in national jurisprudence and there is growing consensus within the legal fraternity about their meaning and importance.

Such reform must take into account gaps at the policy levels. First, there is no legislation which defines the specific guarantees that constitute the right to fair trial enshrined in Article 10-A. Past experience suggests that unless constitutional safeguards are elaborated in enabling legislation, they will not translate into on-ground improvements in rights protection. Second, various other weaknesses abide in the policy framework governing criminal justice administration of heinous crimes. Most importantly, the main procedural law i.e. the Criminal Procedure Code does not provide any measures for the protection of justice stakeholders – judges, prosecutors, defense lawyers, witnesses and litigants who are involved in sensitive cases where the threat of violence is high. Past experience has shown that these stakeholders are often harassed, threatened, injured and even killed – especially with cases involving offences against religion, and other heinous crimes.

In 1997, a justice of the Lahore High Court was gunned down in his Chambers for acquitting Christians accused of blasphemy. More recently in 2014, human rights advocate was killed for defending a man, again, accused of blasphemy. Without legal measures to protect these stakeholders, they remain exposed to undue pressure on the performance of their duties. This insecurity, in turn, deprives the accused in such cases of their right to fair trials.

Third, in the absence of methodologically rigorous, politically neutral, and policy relevant evidence, policymakers will remain oblivious to weaknesses in the legal framework, while civil society will lack substance in its efforts to push for reform. The policy developments mentioned earlier took place despite vehement opposition by human rights activists, international and domestic watchdogs (including Amnesty International, Human Rights Watch, Human Rights Commission of Pakistan) and a plethora of domestic NGOs. However, anecdotal evidence of individual cases in published reports, and ‘human interest pieces’ in national dailies cannot provide the evidence base for policy reform of this magnitude. To strengthen the argument for reform in policy discourse, civil society requires empirics that quantify and regularly monitor the level and scale of violations of the minimum guarantees of fair trail and due process in Pakistan.  Equipped with this evidence, civil society will be strengthened in its capacity to hold the justice system accountable for such violations as well as advocate for reform at the policy levels.

However, if it is to succeed, policy reform must be accompanied by efforts to bridge gaps at the implementation level. First, justice sector stakeholders – police officers, defense lawyers, judges, prosecutors, prisons officials, and parole and probation officers – are: a) unaware of these minimum guarantees for fair trial and due process; b) unmindful of their significance; and c) unfamiliar with their official responsibilities for ensuring that these guarantees are provided to the accused in criminal cases. Unless their capacity it built, they will be unable and/or unwilling to improve their performance, irrespective of any legislative reforms that may be introduced.  Second, legal literacy concerning the right to fair trial and awareness of due process is severely limited among ordinary citizens.  This lack of awareness makes them all the more vulnerable to violations of their rights, when they come into contact with the criminal justice system. Unless this awareness is built, their ability to: a) know when their rights are being violated; and b) seek recourse against such violations – will be severely limited. Similarly, civil society will remain unable to build and articulate popular demand for reform unless citizens are duly informed of their right to fair trial and due process.