Crime and punishment

November 25, 2019

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The writer is a lawyer.
The writer is a lawyer.

IT is argued that NAB is working the way it does because justice is blind. The fact that it is predominantly targeting the rich and the (once) powerful is cited by many in government to show how they are finally making everyone equal before the law. It is argued that the law is a creature of mathematics, devoid of any human emotion, and that NAB is the algorithm of logical justice.

This is a farce.

There is fundamental compassion in the law; it lives in its universal application. Where society cannot find it in itself to keep women in jail pending trial, it leaves it to the court’s discretion to let most accused women out on bail. Where trials run for years on end, the system evolves to develop the ‘one-year rule’, as ours has done, allowing for the courts to consider bail where the detainees cross that timeline in custody through no fault of their own. Where a legal system cannot stomach a special law which does not allow for bail, such as the NAB law, it is read into the law as a fundamental constitutional right.

Where the law is denuded of its equal application is where it stops being the law and starts becoming a majoritarian tyranny. It is the latter which is blind, and a crude and wicked mathematical equation — where a government uses a developed legal system to suit its own selective designs, employing its sharp edges against some whilst harmlessly brushing against similarly placed others.

Before being released, Maryam Nawaz Sharif’s request before the accountability judge to be allowed to see her ailing father for an hour on her way back to NAB custody was refused. This was a woman in detention pending charges, not in prison serving a sentence.

It is only the preventative aspect that is balanced against the accused’s right to liberty.

Shehryar Afridi, in a speech that lacked much accuracy, boasted how he would try his best to make an example of someone who was trading in illegal drugs. The person he was speaking of was Rana Sanaullah, and the example was his detention without a charge being framed against him after more than 120 days of remand extensions.

Society imprisons people for four broad reasons: for retribution or punishment as a consequence of criminal conduct; for deterrence, as a lesson to the individuals imprisoned and the people at large; for personal reform of those sent to prison; and for prevention of further crime by those imprisoned.

Detention at the stage of criminal investigation is for prevention alone. Detention pending the pronouncement of guilt by a court cannot be a punishment, as the reason to punish has not yet been established. It cannot be a lesson to others or for personal reform for the same reason. It is only the preventative aspect that is balanced against the accused’s right to liberty: if they did commit the crime which might or might not be proved, how important is it to prevent them from being able to commit further crimes, the likes of which they have already been accused of?

Hence, the only reason why individuals can be deprived of liberty pending trial, conceptually, is that they are a danger to the public, they are a flight risk, or they are in a position to compromise the record and evidence which are to be used in their trial should they remain free. All three are preventative actions by the state. All three have been addressed globally in ways that no longer require custodial detention. Dangers to the public and flight risks can be confined to their homes, monitored by centralised electronic-tagging systems and visited by police. This also costs less than full-time confinement.

Someone who could destroy sensitive records if left at liberty is simply removed from the post or the position where they are able to affect such damage pending their trial.

In Maryam’s case, none of the ingredients of preventative detention could ever be met other than to allege that she was a flight risk. The nature of the accusations against her meant the record and body of evidence was beyond her ability to tamper with, and the accusation of financial impropriety carried with it no direct danger to the public. But she was a willing participant in the inquiry, and missed only a single summons to the investigation authority on account of it providing her with inadequate notice to attend. So why was she arrested?

The Sanaullah detention is especially malicious, as the government itself pulled the rug from under the regular monitoring judge to prolong it and now drags its feet in requesting another recommendation from the high court. As an excuse, the law minister calls the lack of notification the fault of the interior ministry, and points towards the high court as the competent authority to send a new judge.

Conveniently forgotten here is that it was the law ministry which wrote to the high court requesting to relieve the first judge from service and then acted to inform him of the same via WhatsApp. No one waited for the Lahore High Court to decide.

The need for subordinate court appointments to be made by relevant high courts and not by the government was hard-won after the antiterrorism courts were set up with an intent to have the executive nominate its judges. The Sharaf Faridi and Mehram Ali cases enshrined the concept that judicial independence stems from the judiciary’s exclusive right to monitor and appoint subordinate judges. The government appears to move without respecting these pronouncements when removing judges, and hiding behind the need for judicial appointments (without triggering the requests for them) when appointing judges.

When there is a process of selection and exclusion before there is due process of law, the legal process is deprived of its core promise: that we are ruled by the laws we make, not by the men who help make and serve them.

We seem to be at a pass where the holding of some political party tickets appears to be a strict liability offence.

The writer is a lawyer.

Twitter: @jaferii

Published in Dawn, November 25th, 2019