To Bail Or Not To Bail?
It is a universally recognized principle that wherever there is inequality, there cannot be justice. Equality and justice are two sides of one coin. Two ideals but one goal. Often times adversaries inside court will resort to the crudest of jungle dynamics to impose their way and will upon not only the victims and their families involved in the cases but also upon the judges – our supposedly noble guardians of the rule of law. This climate of fear is orchestrated by litigants through intimidation. Be it through political interference, offerings of bribe or the use of coercive tactics, one side to the dispute is likely to take an unfair advantage. Unfortunately, here in the dark and guilty underbelly of the legal system, nourished and bolstered by political powers that be, these practices are too common in criminal proceedings.
A recent case from Lahore unveils this deep-rooted conundrum: KS, a 22 year old student in Lahore was stabbed by her male college-fellow in broad daylight and in the presence of bystanders watching the brutality being unleashed upon the young girl. Even her younger sister, only 6 years of age, was caught in the crossfire and sustained several injuries. Miraculously, the two girls survived. But in a more incredulous turn of events, the helmet-clad perpetrator not only drifted away from the crime scene unhampered, but was also granted pre-arrest bail by the sessions court, owing to his father’s influence in the legal fraternity as a senior lawyer. One might think that with seniority comes a sense of accountability, but one would be wrong to presume this. For here in the working dynamics of the criminal justice system in Pakistan, more often than we would like to admit, the lawyers and their ‘friends’ in political positions are a mafia in their own.
Yet, if you are still wondering why this is an affront to justice to grant bail to a young offender with no past conviction, think again and you can identify the catch-22 for yourself. During the pre-trial and investigation stage, i.e. precisely that point in time when the facts to be litigated upon are set in stone for a long and tedious cycle of petitions and appeals to come, the unequal bargaining positions of parties to a dispute have the most room to maneuver the reality on ground. Harassing phone-calls, blackmailing to harm individual reputation, cyber-bullying, physical stalking and threats to the use of criminal force are to name a few of those shameless, not to mention illegal, tactics that alone more than justify a legal responsibility on the state to provide physical protection to victims of crime, commensurate with the risks relevant to facts and circumstances in each individual case. Yet, in KS’s case her desperate letters and applications to the AIG, CCPO, Sessions Court, Lahore High Court and the office of the Chief Minister fell on deaf ears as nothing was ever done to protect her from the constant threats looming over her head. In their pleadings before the High Court, the counsel for the accused repeatedly sought to manipulate the fact that the supplementary statement of the victim was not recorded until 5 days after the horrifying incident. In KS’s state of severe physical pain and potentially irreparable mental trauma, her inability to record an official statement is not only explainable but should be seen as a lesson for investigators, lawyers and judges alike. This needs to sensitize the police and the judiciary as the impact of emotional and psychological trauma is most of the times irreversible. There have been reported incidents of female victims of rape fainting on the floor of the court while being cross-examined. This prevailing mindset that conveniently discards trauma as a legitimate source of permanent damage to an individual’s well-being must, at all costs, be shunned for its narrow and limited understanding of the fundamental human rights of victims of crime.
As students and practitioners of law, we are taught that any and each impediment to exercising one’s inalienable right to fair trial under Article 10A of the Constitution should be removed from the judicial and policing apparatus. Undue, unwelcome and unjustified forms of pressure to ‘settle’ through compromise outside the due process of law go against the very letter and spirit of the principle that all citizens shall enjoy the ‘equal protection of law’. In KS’s case, the age-old wisdom seems to hold true. Expectedly so in a country where the judiciary is notorious for its corruption, mismanagement and subordination to those in power.
Bail laws traverse through precarious waters before they are applied by judges. Like most other deliberations in court rulings, there is a fine and delicate balance to be struck between opposing values. On the level of fundamental right, there is on one hand, the defendant’s privilege to be presumed innocent until proven guilty and on the other, the victim’s right to a fair trial (a right that stands compromised if the assessment of court regarding the defendant is an error in judgment, politically motivated or otherwise). Adding to the complexity are wider considerations of maintaining the physical and emotional well-being of the individual at the receiving end of criminal brutality. One need only sieve the facts of the present case through the Islamic legal concept of fasad-fil-arz, as enshrined in Section 299 of the Pakistan Penal Code 1860. The crime committed in the most heinous of manners, given its abhorrent occurrence in public, also amounts to a grave menace for the society at large. As protectors of the law, it is incumbent upon judicial authorities to keep in mind the broader implications of releasing a sex-offender or vicious criminal back into the community. Where exactly, that line must be drawn, is of course a question of fact. However, the rights to be protected must under all circumstances be determined on the basis of law and not politics, and in line with principle and not procedure.
Admittedly, recurring episodes of violence against women in Pakistan have come to represent the worst of our eastern values. Whether it is the interpretation on the basis of which husbands can ‘slightly beat’ their lawful partners or the decisions of tribal jirgas to gang-rape a woman by a group of four, our treatment of women is at an all time low. In this sad and sorry state of affairs, where it has become ever so easy for a woman to be harassed, molested, defiled, raped, assaulted, traumatized, blackmailed or threatened, one might assume that the well-educated segments of the population who have lived all their lives in urban centres are aware of these issues. However, it seems that the opposite is true. The reality of violence pierces through every socio-economic tier of society: rich and poor, well-fed and undernourished, urban and rural, inescapable and incorrigible to the point where one’s very faith in the ‘system’ is shaken to its core.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.