Jun 212008

There can be no victory for the judiciary in Pakistan until the poor, the hapless and the under-represented who truly bear the debilitating cost of Pakistan’s legal and judicial failures become the central focus of the debate over law and justice

On June 18, 2008 a young Muslim man by the name of Shafeeq Ahmed was sentenced to death under the notorious Section 295(b) of Pakistan’s Blasphemy laws. This, barely a year after Yousaf Masih was arrested on charges of desecrating the holy Quran.

The conviction of Shafeeq Ahmed under the charge of defiling the holy Quran and using derogatory language to refer to the Holy Prophet (pbuh) represents a seldom-pondered side of the debate regarding law and justice in Pakistan. While the saga of the deposed judges has made the inadequacy of Pakistan’s legal system an accepted fact, few have paused to consider the plight of those who continue to be sentenced to death under the auspices of a legal system where even the Chief Justice is not immune from political wrangling.

The judicial system, and the legal processes through which a trial is carried out, evidence admitted, and justice meted out is what gives the State the right to inflict punishments on behalf of its citizens. In other words, the State’s acts are justified because of the legitimising power of procedures overseen by a neutral judge who can then issue a verdict. The defence and prosecutorial bodies abide by the same rules and are subject to similar sanctions if they fail to follow them.

Justice, thus, is produced not on the basis of the more powerful, the more politically well connected or the wealthier but rather on the basis of the truth as revealed through the instated procedures.

It is no mystery to Pakistanis that the lower court system, heavily under-resourced, seething with corruption and overburdened by a backlog of cases, is unable to provide even the most minimal of these safeguards to defendants facing charges in lower courts. Not only are these defendants unaware of the laws under which they face trials but they are also routinely unable to get the assistance of counsel in presenting a defence.

And yet, despite the blatant inequities and failure to safeguard the rights of the accused, the same justice system is allowed to order the taking of lives in the name of the Pakistani state.

According to an open letter written by Human Rights Watch to Prime Minister Yousaf Raza Gilani, on June 17, 2008, “the number of persons sentenced to death and executed each year in Pakistan is among the highest in the world”. As the letter states, the vast majority of them were poor and illiterate members of religious minority communities and were sentenced without being provided with due process in trials that did not meet international fair trial standards.

Out of the more than 31,400 convicts in Pakistan, nearly a quarter — more than 7,000 individuals, including almost 40 women — have been sentenced to death, and are either involved in lengthy appeals processes or awaiting execution. In 2007, 309 prisoners were sentenced to death and 134 were hanged. In a macabre travesty of justice, one of the most ineffectual justice systems in the world continues to take the lives of its citizens without so much as a dint of remorse or regret at the possibility of having taken a blameless life.

The Blasphemy laws are particularly heinous in their capacity to take innocent lives. With a single statement from a witness as its sole evidentiary requirement, the law provides much room for the avenging of personal vendettas and other disputes through an accusation of blasphemy. The capacity of such misuse is exacerbated even further by the fact that the law itself provides no actual definition of the offence (i.e. what actually constitutes blasphemy) and makes no stipulation for evidence, or proof of intent in lodging a blasphemy case against an individual.

In one case reported early May, a Christian doctor Dr Robin Sardar, a father of six living in Punjab, was falsely accused of blasphemy by a street vendor after an argument. The day after the incident, the vendor began alleging that the doctor had made derogatory remarks against the Holy Prophet (pbuh) and a mob arrived at his house calling for his death. The police arrested Dr Sardar despite having no corroborating evidence other than that of an irate mob. Under the law, even the procedural requirement of an FIR is waived.

No discussion of the Blasphemy laws is incomplete without also exposing the fallacious arguments used to justify them. Utilising a complete lack of logic, and capitaliing on the deep religious feelings of a largely illiterate populace, opposition to the badly written Blasphemy laws is incorrectly presented as support of blasphemy itself. No mention is made of the religious injunctions of tolerance and mercy whose repeated mention in the Holy Quran and Hadith is not considered as worthy of note as the necessity of punishing supposed blasphemers. Even less mention is made of the reality that the taking of an innocent life by the State in the name of Islam is also a heinous transgression worthy of attention and outrage.

In last week’s column, I wrote about the tragic absence of debate on the values we in Pakistan hope to have represented in the judiciary and I received many inquiries regarding the nature of such a debate. This brief discussion of the use of the death penalty and the presence of ambiguous laws that allow for the persecution of innocent citizens in the name of Islam, legitimised by institutions supposedly acting in the name of the Pakistani people is designed to shed light on this very question. Unless the debate over the judiciary in Pakistan draws into its otherwise overtly political aspirations some frank admissions regarding the failure of justice in Pakistan and the troubling lack of remorse among Pakistanis regarding the taking of innocent lives, it is unlikely that the issue of reinstating judges will be much more than yet another murky, self-serving and ultimately meaningless episode in Pakistan’s legal history.

There can be no victory for the judiciary in Pakistan until the poor, the hapless and the under-represented who truly bear the debilitating cost of Pakistan’s legal and judicial failures become the central focus of the debate over law and justice.

Rafia Zakaria is an attorney living in the United States where she teaches courses on Constitutional Law and Political Philosophy. She can be contacted at rafia.zakaria@gmail.com

Daily Times, 21/6/2008

 Posted by at 12:29 pm

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