ONE of the most misunderstood legal concepts in Pakistan is that of ‘speedy justice’: from an essential safeguard for the accused, it has become a pretext to deny basic fair trial guarantees in the name of ‘speed’.
The right to a fair trial is now recognised as a ‘fundamental right’ in Pakistan’s Constitution. Interpreting the right to a fair trial, the Supreme Court has held that the intention of the legislature was to “give it the same meaning as is broadly universally recognised and embedded in jurisprudence in Pakistan”.
A fundamental prerequisite of a fair trial, acknowledged in Pakistani law as well as Articles 9 and 14 of the International Covenant on Civil and Political Rights (ICCPR), to which Pakistan is a party, is that trial must be held without undue delay and within a reasonable time — which is colloquially referred to as ‘speedy trial’ or ‘speedy justice’.
The right to be tried without undue delay means that the trial must be held within a reasonable time, encapsulating the globally recognised idiom ‘justice delayed is justice denied’. According to the UN Human Rights Committee, what is reasonable has to be assessed in the circumstances of each case, taking into account mainly the complexity of the case, and the conduct of the accused and the authorities.
Courts in Pakistan have warned that “speedy trial should never be at the cost of the procedure”.
Trial without undue delay ensures that the presumption of innocence is respected, and the accused are not deprived of their liberty without getting a chance at defending themselves. It also aims to limit the uncertainty faced by the accused and reduce the likelihood of any stigma attached to the accusation. As such, the right to a “speedy trial’ also seeks to protect the wider public interest through an orderly and effective administration of justice so that only those who are guilty of an offence are convicted. However, this guarantee is, first and foremost, a right of the accused - and abuse of the notion to undercut rather than reinforce fair trial rights creates a perversion of justice.
Courts in Pakistan too have reinforced that a “speedy trial is the inalienable right of every accused”. And they have warned that “speedy trial should never be at the cost of the procedure” or other rights one is entitled to, as the ultimate object of the criminal justice system is to “administer justice, and not speedy disposal of a case”.
In practice, however, a number of ‘special laws’ promising ‘speedy trial’ for a range of serious offences have turned the principle behind the right to be tried without undue delay on its head: they have set unreasonably short time frames for cases to be concluded, and more disturbingly, instead of addressing the root causes of delays, they have curtailed basic fair trial rights of the accused in the name of ‘speed’.
Take, for example, the Anti Terrorism Act, 1997, which provides for prevention of terrorism, sectarian violence and for “speedy trial of heinous offences”. The law states that courts must decide cases under the act within an unrealistic time frame of seven days. It places restrictions on the right of accused people to get bail and denies them a number of protections available under the Criminal Procedure Code, including that searches be made in the presence of witnesses. Even the Supreme Court has stated that the ATA is a “harsh law” that significantly curtails fair trial rights.
Similarly, the 23rd Amendment to the Constitution and amendments to the Army Act, 1952, provide for “special measures … for expeditious disposal of certain offences relating to terrorism”. They allow military courts to try civilians accused of certain terrorism-related offences, jurisdiction that is inherently incompatible with the independence and impartiality of the judiciary.
The procedures of military courts are also opaque and their hearings are closed to the public, which has enabled serious fair trial violations including the denial of the right to counsel of choice; failure to disclose the charges against the accused; failure to give convicts copies of a judgement with evidence and reasons for the verdict; and a very high number of convictions — nearly 98 per cent — based on ‘confessions’ without adequate safeguards against torture and ill treatment.
In addition, the preamble of the National Accountability Ordinance, 1999, states that it is expedient and necessary to provide for effective measures for “speedy disposal of cases involving corruption”. It provides that accountability courts shall decide cases within 30 days; reverses the burden of proof by presuming guilt for some offences; allows arrest without warrant at any stage in the inquiry; provides prolonged periods of pre-trial detention; and makes offences under the law non-bailable.
While the aim of reducing delay is laudable and must be a priority for law reform in Pakistan, what is of concern is the emphasis on ‘speed’ with little consideration given to the need for justice — justice being about convicting the guilty and acquitting the innocent, rather than the desire for quick retribution.
This ‘speed’ is achieved not through the strengthening of the criminal justice system, but through oppressive measures such as reversing age-old principles like the presumption of innocence and the right to a public hearing, impeding on the right to liberty, and denying the accused the right to sufficient time and facilities to prepare their defence.
The frustration with prolonged delays in criminal trials in Pakistan is legitimate, but there are no overnight solutions to a crisis caused by decades of neglect. Ensuring speedy ‘justice’ in the true sense will require major rethinking and reform of the criminal justice system. It will require learning from the successes and failures of other jurisdictions with similar legal systems; ensuring that minimum guarantees of the right to a fair trial are at all times protected; and drawing from the actual
everyday experiences of judges, lawyers and investigators, not hasty, ill-conceived measures motivated by the desire for ‘speed’ at the cost of the fundamental principles of fairness.
The writer is a legal adviser for the International Commission of Jurists.
Published in Dawn, April 1st, 2019