It took two decades for Asma Nawab, 37, to walk once again on the sands of Karachi’s Clifton Beach.
The vast expanse of the Arabian Sea is in many ways an apt representation of endless opportunities — a concept unbeknownst to her until a month ago.
This was because, for the last 20 years, the only future that Asma could envision was confined to the 8x10 perimeter of her death row cell in Karachi women’s jail.
In profile: Asma Nawab
In 1999 an Anti-Terrorism Court (ATC) sentenced Asma to death for the murder of her parents and brother.
Sixteen-year-old Asma’s innocence plea that the murders were committed during a botched robbery was brushed aside by the special court.
Thereupon, Asma’s quest for justice became entangled in the myriad of delays that define Pakistan’s broken criminal justice.
It took another nine years for the Sindh High Court to finally decide her appeal in November 2008 with a split decision from the two-member bench.
The matter was then forwarded to a referee judge, who after another seven years upheld the conviction and death sentence in 2015.
It was not until recently that the faulty investigation propping up Asma’s conviction was finally called into question by the Supreme Court.
The Court observed that the entire case was built upon weak circumstantial evidence which was collected in blatant violation of mandatory rules of criminal procedure.
As a result, Asma was finally returned the liberty and dignity that was unjustly wrested from her.
The justice system’s cruel response to Asma, a victim of a crime that left her without a family, underscores the urgent need for fundamental reform.
The first instance of violation occurred when the case was booked by police under the Anti-Terrorism Act (ATA).
Enacted in 1997, the ATA is the Pakistan’s primary anti-terrorism legislation, promulgated to increase the power of law enforcement agencies to prevent and investigate terrorism and to create special ATCs to expedite trials of terrorist suspects.
However, more than two decades following its operation, the law has been largely ineffective in fulfilling its mandate.
By virtue of a broad and vague definition of terrorism, the law allows for ordinary crimes bearing no nexus to terrorism to be tried under the special regime.
Section 6 of the law defines terrorism as any crime or threat designed to create a “sense of fear or insecurity in society.” Subsection 2 broadens the scope of the law by listing over 18 crimes that could fall within the meaning of terrorism.
This includes ordinary crimes already criminalised under the Pakistan Penal Code, such as any crime that “involves grievous violence against a person or grievous boy injury or harm to person” and “doing of anything that is likely to cause death or endanger a person’s life.”
A study by Justice Project Pakistan noted that around 88 percent of those sentenced under the ATA were convicted of non-terrorism crimes.
Subsequent interviews with police and prosecutors revealed that booking crimes under the ATA was a means to appease politically influential complainant or the general public in high profile cases.
United Nations Treaty Bodies have consistently called on the government of Pakistan to ensure that persons convicted for ordinary crimes are not tried under the special procedures of the ATCs.
However, no measures have been taken thus far.
Need for circumspection
The overuse and abuse of the law holds disastrous consequences. Firstly, with a back log of thousands and thousands of cases, the ATCs are riddled with delays which inevitably impact the timely prosecution of actual terrorists.
Similarly, as the law waives key procedural safeguards guaranteed under the ordinary courts and provides enhanced police powers and fast-track investigation and trials, the eventual convictions rest on faulty investigations and severe fundamental rights abuses.
Consequently, a significant number of convictions under the ATA are overturned by the superior court in appeal.
But the rectification of injustices, such as in the case of Asma, comes after suspects have effectively served entire life sentences.
On the same topic: Quality of justice
It was in this vein that the Supreme Court in August, 2017 cautioned lower courts against including ordinary crimes like murder within the ambit of the ATA.
Justice Dost Muhammad Khan in his judgment stated that “the courts of law shall not lightly ignore that being a harsh law enacted to punish terrorist or hardcore militant, the Anti-Terrorism Act (ATA) 1997 will not be extended liberally to cover criminals who commit the crime of murder or attempted murder for any reason or motive that has no connection with terrorism or militancy.”
However, no demonstrable change has been seen in the jurisprudence of the lower courts.
Justice is blind... to gender
Public discourse in Pakistan, in the wake of the few heinous crimes that manage to make their way into headlines, inevitably demands booking suspects under the ATA for speedy justice.
What’s missing from the narrative are the countless victims, like Asma, who pay the price for the temporary assuaging of public outrage.
In addition to falling victim to Pakistan’s anti-terrorism regime, Asma's identity as a woman also made her susceptible to the violations of justice that she inevitably fell victim to.
Interventions on access to justice for women in Pakistan remain inordinately focused on victims of crime. Missing from the debate are women who are accused of committing crimes, especially under the ATA.
Owing to stigma attached to crime, women accused of criminal activity are more likely to be abandoned by family or support networks.
As a result, they are less likely to have access to effective legal representation during the course of trials and appeals.
This leads to gross miscarriages of justice, particularly under the parallel regime of expedited trials and investigation under the ATA.
Additionally, women are also vulnerable to torture and abuse by law enforcement during interrogation and investigation.
This likelihood quadruples under the ATA, as the special law, under Section 21H, allows for the admission of confessions and statements awarded in police custody as evidence.
This is in contravention to Pakistan’s evidence law under the Qanun Shahadat Order that only permits confession recorded in the presence of a magistrate to be admissible as evidence.
As a result, police under the ATA routinely extract confessions from suspects on the basis of torture. The risk of torture is additionally heightened by the police powers to detain a person for up to 30 days without review or the possibility of habeas petition, and another 90 days through application to the courts.
These powers facilitate the police’s extraction of coerced confessions and statements from accused parties and witnesses.
Call for reforms
The UN Committee Against Torture in its review of the government of Pakistan’s initial report in March, 2017 asked the government to ensure that all persons tried under the ATA “have access to legal safeguards against torture, including prompt presentation before a magistrate and the possibility of a habeas petition, and to ensure that confessions obtained outside the presence of a magistrate are inadmissible as evidence.”
It is evident that Pakistan’s criminal justice has failed to protect women like Asma from abuses of power and misconduct by police.
These instances of severe fundamental rights violations are far from isolated and represent the reality for the majority of Pakistan’s prison population.
It is critical that the government of Pakistan reform its laws to reduce the definition of terrorism under the ATA through restrictive language and by explicitly excluding common crimes such as murder or hurt from its scope.
It is also necessary that provisions giving overarching powers of interrogation and investigation to the police, such as section 21H, are excluded from the law to avoid gross miscarriages of justice.
Only once these reforms are initiated can cases like Asma's be avoided.
Illustration by Zoha Bundally
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