Cumbersome legal procedures and right to fair trial

As Pakistani society is becoming more complex due to rapid increase in population, urbanisation, growth, migration and consequently multiplying conflicts and issues, the attainment of justice is getting more and more difficult. The chaos, instability and ever-rising number of crimes in Pakistan apart from many other macro-sociological causes also include the denial of justice, in particular the right to fair trial. In Pakistani society, pseudo charges on one’s tribal, familial, sectarian, religious rivals or perceived opponents is a norm. When those accused of crimes and wrongdoings are put under trial in a court of law, the procedure is so cumbersome that in getting their names cleared they lose a good amount of their time, resources and energies. In Pakistan, it has been seen that even the judges most of the time could not control the surrounding circumstances to completely ensure fair trial to every individual.

Pakistan’s legal framework for criminal trial is rooted largely in multiple sets of laws including but not limited to constitutional provisions and principles, substantive and procedural laws, prisons rules as well as parole and probation regimes. The Pakistan Penal Code (PPC), 1860 is the predominant criminal law regime, whereas the Criminal Procedure Code (CrPC), 1898 provides legal procedural framework for hearing, acquittal or punishment. The Qanoon-e-Shahadat Order, 1984 conditions the law of evidence. Apart from these general laws, there are special and local laws having exceptional procedures.

The British colonial rulers introduced the Indian Penal Code (the forerunner of criminal law in Pakistan) and promulgated the Indian Criminal Code. Both the legal regimes introduced reforms to the decadent and hackneyed Indian judicial system. These reforms include legal codification, progressive punishments, elaborate procedure, appropriate checks and balances at various tiers, equity, equality before the law and introduction of damage as the defining criteria of the crime. But societal dynamics, including poverty, ignorance and unsophisticated lifestyles of the then Indians, prevented the masses from getting real and meaningful benefits of the legal reforms. The concomitant factors and elements of the reforms especially professional lawyers in the criminal justice system made it quite cumbersome to attain justice.

Pakistan inherited the same criminal procedure and framework which is far from the people’s satisfaction. Pakistanis’ dissatisfaction with the country’s criminal justice system persists. This is evident from the fact that the conviction rate is not believed to be more than 10% while the crime rate is ever increasing. Even legislative amendments, constitutional provisions and laws to reform the criminal justice system in different eras have largely failed to guarantee fair trial rights to the suspects and accused. In 2010, Pakistan ratified the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT) thus committing to ensure fundamental human rights of the citizens, including the right to a fair trial. As a result of that in 2010, Pakistan inserted the new Article 10-A in its Constitution, which exclusively deals with the right to a fair trial. The right to fair trial is an essential right in all countries having committed itself to human rights framework. Numerous international human rights regimes such as the Universal Declaration of Human Rights (UDHR) have right to fair trial as its cardinal part.

Keeping in view the violations of human rights of Pakistanis especially the right to fair trial there is a great need to ensure this right of the inhabitants of Pakistan. In this regard, there is a need to first identify the procedural problems and lacunae in our criminal justice system. On the other hand, there is a need to develop minimum criteria or index of fair trial and this must be in consonance with the internationally-recognised criteria for fair trial.

Published in The Express Tribune, July 16th, 2018.

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