By Umer Gilani
The writer is a partner at The Law and Policy Chamber.

What good is a liberal constitution if it cannot secure the most basic of all liberties: the liberty of a person?

Seventy-five years after the supposed overthrow of the colonial state, most people involved in public life in Pakistan still live in the perpetual fear of getting arrested and detention by the state – even if they are completely innocent. We are not talking about the fear of getting convicted by a court of law for the commission of a crime: that would be a ‘healthy’ fear, the intended outcome of any justice system.

We are talking about the fear of a police official or FIA official suddenly appearing at your doorstep, arresting you for an offence you had never even dreamt of, and locking you up behind bars for months, sometime years, until you are finally acquitted by a court of law.

The fear of suffering wrongful pre-trial or under-trial detention is not unfounded. There are statistics that justify it. Official figures recently presented by the Ministry of Human Rights to the Islamabad High Court show that around 66 percent of all prisoners in Pakistan are under-trial prisoners. Juxtapose this with another fact: our average conviction rate is in single digits. Put the two facts together, and you come to the conclusion that around 60 percent of all those who are presently behind bars are ‘wrongfully’ detained. They will, at the end of a long tunnel of litigation, be declared innocent; and yet, they must suffer detention for months and years.

Most analysts provide purely political and cultural explanations for this culture of excessive pre-trial and under-trial detention which has taken a hold over our criminal justice system. Ours is a society with scant regard for the presumption of innocence, they say. Ours is a state prone to excesses, others contend. While these are partially valid explanations, they miss out on something equally important: the role of “bad laws” in perpetuating this mess.

In this two-part article, I will be arguing that this alarmingly high level of pre-trial and under-trial detention is not in spite of the laws; it is because of a certain set of procedural laws, which we have unthinkingly inherited from the colonial era.

First, let’s examine our law relating to the arrest of a person under investigation. In a society where everyone is presumed innocent until proven guilty, a person who is still under investigation should, as a general rule, never be arrested. There are only three logical exceptions to this rule: (i) if the accused is likely to abscond in order to evade investigation; (ii) if the accused is likely to harass possible witnesses or otherwise obstruct the course of investigation; or, (iii) if the accused is likely to re-offend.

Surprisingly, this common sense principle does not find a mention anywhere in our 565-sections-long Code of Criminal Procedure. In fact, the Code, which was first put together for us by the British in 1861, altogether avoids any discussion of “grounds of arrest”, thereby leaving investigation agencies and Magistrates with almost entirely unfettered discretion. There are some recent judgments of Pakistan’s superior courts, such as Khizar Hussain (PLD 2005 Lahore 470) authored by former CJ Asif Saeed Khosa and Haider Ali (2015 SCMR 1724) authored by Justice Jawwad Khawaja where this principle has been articulated. But it is not mentioned anywhere in the Code itself.

It is important to recognize this legislative gap because, for around 160 years, the psychology of our law-enforcement personnel has been shaped by the Code (and not the judgments of the superior courts). A gap so fundamental cannot be filled through sporadic judicial interpretation alone; it calls for parliamentary intervention.

While the grounds for which a person should or should not be arrested are nowhere mentioned, a list of persons whom the State can arrest is provided. There are nine categories of person who can be arrested without needing a judicial warrant, the broadest of which is: everyone “concerned in any cognizable offence”. More than 250 offences have been categorized as “cognizable offenses”. In practice, what this means is that if a complainant is willing to go to a police station and allege that you’ve committed any one of these 250 plus offences, the police can lock you up overnight, no questions asked.

Second, let’s have a critical look at the concept of ‘remand’. As lawyers enamoured to the constitution, we often recount Article 10(2) which promises that anyone who has been arrested by the state must be presented before a magistrate within 24 hours of his arrest. What we don’t mention is the thing that most likely happens next: remand. Section 167 of the Code empowers a magistrate to “authorize the detention of the accused in such custody as such magistrate thinks fit, for a term not exceeding fifteen days in the whole”.

After spending a night in detention, when you are brought before a magistrate, he or she usually sends you back to one form of custody or another. If the magistrate is kind, you go to prison; if s/he’s less so, you go back to the police lock-up. After spending anything fifteen days or so in either form of custody, you are again hauled before the magistrate. Usually, the remand is unthinkingly extended and the process goes on, until your lawyer files for bail.

In principle, a magistrate should not remand you to any form of custody for even one day, except after recording detailed reasons in writing about why this was necessary. So, for instance, s/he may mention evidence presented to him/her showing that you have been defying call up notices, destroying evidence, harassing witnesses etc. But in reality, this requirement is mostly honoured in the breach.

Rare is the magistrate who bothers to offer any detailed reasons at the remand stage – unless pushed hard by a skilled and powerful lawyer. The Code does not provide any appellate forum where you can appeal the mindless extension of remand nor does it provide any penalty for a judge who mindlessly remands accused persons to custody.

This scheme of criminal procedure, designed for a colonial government, is hardly a recipe for securing the liberty of the individual from state intrusion. Parliament must reconsider it. The least that can be done is to add a section providing a narrowly tailored list of grounds of arrest – such as “absconding”, “witness tampering” etc. The list should be narrow and exhaustive.

The point it, if we are ever to the realize the constitution’s promise of liberty, it is not just the enforcement of law, but the laws themselves which will have to be questioned in light of higher principles.

Official statistics show that over 66 percent of Pakistan’s total prison population consists of under-trial prisoners. Our average conviction rate is in single digits. Put these two facts together and you realize that around 60 percent of those who are presently in Pakistan jails are wrongfully detained there – at least as far as formal justice is concerned.

At the end of a long tunnel of litigation, these tens of thousands of will be declared innocent; and yet they must linger for years behind bars. Why is this so?

In this article, I am arguing that the excessive prevalence of pre-trial and under-trial detention is at least partly the result of flaws in our law of criminal procedure. It is not just their implementation but the laws themselves which must be reviewed in the light of our constitution. In the first part of this article, I pointed out gaps in our colonial-era laws related to arrest and remand. Now, I look at flaws in the law of bail.

In a system which is based on the presumption of innocence, every accused person should, in principle, be entitled to be released on bail. The only logical exception would be an accused person who is likely to commit “absconsion”, “obstruction of investigation” or “re-offending”. But this is definitely not what our Code of Criminal Procedure says.

Under the Code, which was first put together for us by the British in 1861, your right to bail has nothing to with anything that you might do; instead, it depends entirely on what the complainant has alleged against you. If the complainant has taken care to allege a sufficiently serious offences against you, you are likely to be in trouble, regardless of whether you did it or not.

The basic scheme provided in the Code is that all offences have been put into three categories: (i) strictly bailable (S 496); (ii) generally bailable (S 497); and (iii) generally non-bailable (prohibitory clause of S 497). The third category, which comprises all offences which are categorized as non-bailable and carry ten years sentence or more, is really problematic.

If a person has been accused of an offence falling in this category, he must prove that there are no “reasonable grounds for believing that he has been guilty”. For offences in this category, the burden of proof, in a way, shifts to the accused, even at the bail stage. The accused must establish prima facie innocence; otherwise, he will stay in jail until acquitted.

The category of ‘generally non-bail offences’ is not confined to the most serious offences such as ‘murder’ or ‘rape’. Several dozen offences fall in this category. Add to this the fact that an accused person who is trying to prove his prima-facie innocence in such cases is not legally entitled to have access to the police file. Just imagine what it is like to try and prove your innocence before a judge without knowing exactly what the evidence has been submitted against you.

Many hard-core criminal law practitioners, who have internalized the Code, do not think of the law of bail in these terms. But, seen from the lense of constitutional law, it becomes clear that our bails procedure represents a complete reversal of the presumption of innocence.

As if our colonial law related to grant of bails was not bad enough, in 1999, a fourth category was added: “strictly non-bailable” offences. Under the National Accountability Ordinance, 1999, which is one of most draconian laws ever written, the remedy of bail was abolished altogether. In the Asfand Yar Wali case (PLD 2001 SC 607), where the vires of this provision of NAO came under challenge, the SC struck a compromise.

The abolition of bail-granting powers of the trial court was not struck down; but it was held that in deserving cases, bail can still be granted by the high courts, while exercising their extraordinary constitutional jurisdiction. Here too, the accused must establish prima facie innocence, rather than the other way round.

After the adoption of the constitution of Pakistan of 1956, our parliament should have reviewed the entire scheme of our criminal procedure. India did just that. In 1973, they adopted a new Code of Criminal Procedure which addresses at least some of the issues raised here. Pakistan’s parliament, however, never got round to it. Even the UK overhauled its procedure through the Bail Act of 1976.

Over the years, our Law and Justice Commission of Pakistan (LJCP) has been recommending amendments. Notably, the LJCP has, in one of its reports, suggested the insertion of Section 59-A, into the Code to incorporate the “right to have someone informed when arrested”. Reports No 17 and 49 are noteworthy in this regard. In Haider’s case (2015 S C M R 1724), the Supreme Court of Pakistan also called for a review of the CrPC’s compatibility with fundamental rights. But thus, parliament has not undertaken any major overhaul of our law related to arrest, remand and bail – inherited from the colonial era.

One hopes that, if no one else, at least the dozens of parliamentarians who have had a recent brush with unfair detention will pause and reflect on the issues pointed out in this piece.

Concluded

The writer is a partner at The Law and Policy Chamber. He tweets at @umerijazgilani