Mending the system

March 28, 2019

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FINALLY, after years of empty rhetoric, there are tangible measures being taken to fix Pakistan’s broken justice system. Among the most recent such steps is the establishment of a cell to monitor and evaluate proceedings at model criminal trial courts to be set up in each district with the objective of dispensing expeditious justice. The cell will be headed by Islamabad District and Sessions Court judge Sohail Nasir who will report directly to Chief Justice of Pakistan Asif Saeed Khosa, indicating the importance that the country’s top judge places on the initiative. The MCTCs will be equipped with all facilities to ensure that the monitoring cell, which will provide the courts with detailed protocols including trial scheduling, has uninterrupted online access to the proceedings. Another essential step towards the provision of speedy justice came about a few days ago when Justice Khosa announced the formation of a seven-member bench to determine the definition of ‘terrorism’ and the cases that fall under it.

Delay is among the most serious of the multiple problems that plague the criminal justice system: there are around 2m cases pending before various courts in the country. According to a recent Nacta report, Pakistani prisons house 57pc more inmates than their authorised capacity and two-thirds of the prison population is either awaiting or undergoing trial. In many instances, prisoners have been acquitted after enduring years of incarceration. Insufficient human resources; sloppy case management; archaic court procedures; incompetent police investigations; and corruption, especially in the lower courts — each of these contributes to interminable adjournments. However, flawed drafting of the anti-terrorism legislation has also considerably exacerbated the situation. A special law, enacted for a specific purpose, must have a narrow ambit; instead, the ambiguous definition of ‘terrorism’ in the ATA enables overly broad, arbitrary and even malicious application of the terrorism clause. As a result, the ATCs have become bogged down with cases that should be dealt with by ordinary courts. Rather than address the issues that impede the functioning of the criminal justice system — such as by appointing more judges, rationalising the ATA, etc — the civilian leadership has cited delays in ATC trials as a compelling reason to set up special courts. The opaque procedures employed by these parallel mechanisms of ‘justice’ are antithetical to the principles of due process, in which transparency is a key element.

Meanwhile, civilian courts have been further diminished and projected as being chronically ineffectual. The possibility of redressal has always been within reach. Perhaps we are at last on the cusp of such a change in direction, and if so, it cannot come a moment too soon. Our recent history illustrates the consequences of tolerating a long dysfunctional justice system, for that is what provided militants in Swat a pretext for their brutal rule. The very human need for timely justice must not be thwarted.

Published in Dawn, March 28th, 2019