“DEPRIVATION of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon … Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.”
The Indian Supreme Court’s observations in ‘Sanjay Chandra’ (2011) aptly elucidate the link between the right to liberty and pretrial detention, an understanding that is strikingly absent in Pakistan’s laws, practice and jurisprudence.
The right to liberty is one of the fundamental rights guaranteed by Pakistan’s Constitution. Article 9 provides that “no person shall be deprived of life or liberty save in accordance with law”, placing personal liberty on the same pedestal as the right to life. The right to liberty is also guaranteed under international law, including Article 9 of the International Covenant on Civil and Political Rights (ICCPR), to which Pakistan is a party.
Simply put, the right to liberty guarantees that the state cannot imprison or detain people unless the deprivation of liberty is reasonable, necessary and proportionate in the particular case.
Under international standards, pretrial detention should be the exception.
Defining the right to liberty in the ICCPR, the UN Human Rights Committee has said, “detention pending trial must be based on an individualised determination that it is reasonable and necessary taking into account all the circumstances.…” Furthermore, the committee has said that courts must examine whether alternatives to pretrial detention, such as bail, electronic bracelets or other conditions, would render detention unnecessary in the particular case.
Pakistan’s bail laws and jurisprudence, however, make a mockery of the right to liberty.
Criminal offences in Pakistan are divided into two categories: bailable and non-bailable offences. For bailable offences, bail is an accused person’s right, whereas in non-bailable cases, bail may only be granted at the discretion of the court.
For non-bailable offences, Section 497 of the Code of Criminal Procedure (CrPC) provides that accused shall not be given bail if there are “reasonable grounds for believing” that they are “guilty of an offence punishable with death, imprisonment for life or imprisonment for ten years”.
The designation of certain offences in Pakistan’s Penal Code as ‘bailable’ or ‘non-bailable’ appears arbitrary: for example, kidnapping, assault, and accidental homicide are bailable, whereas hurting religious sentiment, sedition, and promoting enmity between different groups are non-bailable.
Most offences under special laws such as the Anti-Terrorism Act, 1997, and the National Accountability Ordinance, 1999, also fall under the ‘non-bailable’ category. Furthermore, these special laws allow for long periods of remand — where people are detained for the purpose of investigation — which may be up to 90 days. The National Accountability Ordinance also expressly ousts the jurisdiction of courts to grant an accused person bail on any ground whatsoever, which means that accused people have to approach the high courts for bail in their constitutional jurisdiction, the grounds for which are even more stringent.
These provisions on bail appear incompatible with the right to a fair trial and the right to liberty, as it makes courts’ exercise of their decision to grant bail contingent upon the ‘tentative guilt’ of the accused. What this essentially means is that even before the actual trial, courts are expected to make a determination as to whether or not the accused has committed the offence without granting the accused full rights to present a defence.
Decisions as to whether to grant or deny bail or on imposing bail conditions are — and must remain — unrelated to questions of guilt or innocence. To deny bail on untested suppositions of guilt undermines the principle of presumption of innocence, since it effectively applies a punitive sanction (pretrial detention) in response to a court’s pre–judgement in the absence of an actual trial.
Furthermore, under international standards, pretrial detention should be the exception, reserved only for situations where the likelihood exists that the accused would abscond or destroy evidence, influence witnesses, or flee from the jurisdiction of the state. Detention prior to trial is therefore conceived not as punishment, but as a preventative measure aimed at averting frustration of justice or (further) harm.
Courts too have not interpreted these laws in a manner consistent with the essence of the right to liberty. Pakistan’s bail jurisprudence appears to be haphazard and arbitrary, with courts refusing bail in a perfunctory manner without reasoned decisions explaining why arrest or pretrial detention is necessary. In practice, this has meant that grant of bail is dependent on extraneous factors such as the nature of accusation, the quantum of punishment, and public sentiment.
In a recent illustrative case, the Supreme Court dismissed a petition for bail related to a case involving allegations of corruption arguing that “the tendency for corruption in every field has become a threatening danger to the state economy” and it was the duty of the judiciary to “arrest this monster at this stage”. Therefore, according to the Supreme court, the courts must not show any leniency and refuse bail if the case is made out on facts at bail stage.
It is no surprise, therefore, that as of 2018, 48,780 out of 78,160 (62 per cent) of Pakistan’s prison population were people accused of offences awaiting trial, which the UN Human Rights Committee also took notice of while assessing Pakistan’s performance in the implementation of the ICCPR. The committee recommended that Pakistan should take all measures necessary to ensure that pretrial detention is used solely as an exceptional measure and not for excessively long periods, in accordance with Article 9 of the Covenant.
The power of arrest and detention is an extraordinary one, which must be used with utmost deliberation and care — not arbitrarily or as a tool of oppression and harassment at the hands of prosecuting authorities or the government of the day.
We must do more than merely pay lip service to the right to liberty. At the minimum, this means parliament should reconsider the laws on pretrial detention and bail, and where there is discretion, judges should apply the provisions of bail to ensure their compatibility with international standards on the right to liberty and fair trial discussed above.
The writer is a legal adviser for the International Commission of Jurists.
Published in Dawn, June 22nd, 2019