Selective due process

Published September 30, 2021
The writer is a lawyer based in Karachi.
The writer is a lawyer based in Karachi.

PLEASE allow me to say at the very outset that the opinion I am about to offer will probably be extremely unpopular. But nonetheless, it must be stated. Representing an accused, no matter how awful the alleged crime in question may be, is a fundamental and core attribute of a fair and deliberative judicial system.

The concept of due process offers substantive and procedural rights to everyone equally, and the very basis of it is to ensure that everyone, irrespective of wealth or not, is treated equally before the law. The concept of due process has always maintained a special place for itself in our jurisprudence, and with the insertion of Article 10-A in the 1973 Constitution of Pakistan, its importance has only been further cemented.

The right to counsel or the right to be represented by adequate counsel is an integral part of the due process rights of an individual, with every person having the right to put his best case before the judge, who inevitably, based on the evidence before him, will decide upon an appropriate verdict, and if need be, a sentence. In its absence, it is often feared, amongst other things, the accused could be convicted on account of erroneous evidence, provided a harsher sentence than would otherwise have been the case, and could even find himself in jail without any trial whatsoever. All in all, the lack of representation or competent counsel could result in a grave injustice.

As a society, we tend to establish guilt before innocence and decide before we deliberate.

Although it may appear simple enough, the problem in truly understanding or appreciating due process rights largely stems from a general sentiment that such rights are only there for the protection of those who most ‘deserve’ it as opposed to everyone irrespective of caste, creed, gender or status.

Hence, we are more amenable to talking about due process rights when confronted with a destitute woman who can ill afford to defend herself or perhaps a child accused of blasphemy, but somewhat more sceptical in advocating those same rights in favour of someone who may be wealthy, influential, or well-connected, or someone who is accused of a particularly heinous crime.

This is perhaps why so many had heaped scorn on the counsels of Nawaz Sharif and his family for representing them in the iqama case. This is perhaps also why so many have taken to vilifying and targeting lawyers who defend alleged sexual harassers, serial rapists, or child molesters, and in recent times, why we see so many people targeting the lawyers of the accused in the Noor Mukaddam case.

One possible explanation for why we are so selective with our indulgence in due process rights may revolve around the pre-eminence we assign to our personal opinions vis-à-vis events around us. After all, why are we so moved into supporting the due process rights of a person accused of kidnapping but believed to have entered into a free-will marriage, or someone accused of encroaching on land but who is believed to be persecuted for being a minority member, or another accused of criminal defamation but perceived as justly calling out people for sexual harassment? Why are we not as passionate about such rights when it deals with certain people, rich or otherwise, who do not fit into our definition of ‘deserving’ and are accused of heinous crimes such as rape, murder, or molestation, amongst others?

The logic, perhaps, could stem from the fact that as a society, we tend to establish guilt before innocence, decide before we deliberate, sentence before we try, and judge before we advocate. Upon being fed a variety of facts as are publicly available, we tend to adjudge the guilt or innocence of someone before we even get to the question of what his or her rights are.

Hence, where we feel that someone has been wronged, we find it easier to advocate due process and his or her rights to a fair hearing, whilst ironically vilifying the prosecution and complainant for exercising their own due process rights in pursuing the matter. Alternatively, if we feel an accused is guilty, whilst acknowledging the rights of the prosecution and complainant to pursue the matter and be heard, the accused’s rights are seen as an impediment to the just outcome of the matter.

And unfortunately, therein lies the rub. In a situation where public opinion about the commission of a crime is divided or indifferent, it tends to be easier to ensure a more balanced trial. But where public opinion is sharply in favour of or against an accused, this is precisely where due process rights become imperative to ensure that both sides have an equal opportunity to put their cases before the judge.

After all, what happens to that child accused of blasphemy when he is not afforded his rights to a fair trial or adequate counsel because everyone is sure of his guilt? Alternatively, what happens to society at large if someone is let off without punishment simply because no one thinks he is guilty in the first place?

To be frank, much like others, I find it extremely difficult to write anything which could lend support to or be seen as encouragement to those who may be sexual harassers, rapists, child molesters, or cold-blooded murderers, amongst others. But in such times, even when one does not want to, whether we like it or not, we must stand for and advocate stances that are bigger than us, and more important than our personal likes or dislikes. We owe it to the system as well as each other.

The writer is a lawyer based in Karachi.

basil.nabi@gmail.com

Twitter: @basilnabi

Published in Dawn, September 30th, 2021

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