What is the most controversial ruling by the superior judiciary?
Faulty proceedings
Walaiha Arafat turned 24 on September 9, 2015. This was her third consecutive birthday spent behind bars since March 2012 when she was accused of, and arrested for, allegedly defiling the Quran — an offence punishable with mandatory life imprisonment.
Two prosecution witnesses deposed before the court in 2012 that they had no personal knowledge about the alleged defiling of the Quran. One of them, Abdul Munim, the complainant, stated that he never lodged the complaint. Two eyewitness accounts are contradictory and inconsistent. There is no rational explanation of the alleged offence either. These, coupled with the fact that Arafat has spent an unduly long period of time as an undertrial prisoner are enough grounds for granting bail.
The Constitution of Pakistan guarantees that for the determination of a criminal charge, a person shall be entitled to a fair trial and due process. It guarantees that “no person shall be deprived of life or liberty, save in accordance with law”. It makes it obligatory that every person detained shall have the right to consult and be defended by a legal practitioner of her choice. Without support from her family, and an uncaring judicial system, Arafat has been represented by lawyers she might not have engaged if she had a choice.
Pakistan’s criminal law prescribes that a person accused of an offence punishable with life-imprisonment or death may not be released on bail where there appear to be reasonable grounds for believing that she has been guilty of the offence. Conversely, the accused may be released in the absence of reasonable grounds for detention. The law also prescribes, in cases where the woman,accused of offence punishable with death, who has been detained for six months and the trial has not been concluded due to reasons not attributable to her, the court shall order for her release on bail. The offence in Arafat’s case is punishable with life imprisonment, an offence lesser than the death penalty and she became entitled to release on bail after six months in accordance with the law of the land.
The court now seems to be firmly on the path of not providing any relief to the accused in most cases even where the evidence is weak, such as in Aasia Bibi’s case.
But Arafat, like many other blasphemy accused, could not benefit from these provisions. In March this year, Asma Jahangir filed a petition for her release on bail before the trial court where it was dismissed. The main contentions in the petition for bail were that (i) the statutory period for keeping her in detention had expired and (ii) there was no likelihood that the prosecution would succeed in proving its case in view of the poor evidence on record.
It was hoped that the Lahore High Court (LHC) would provide her relief on the grounds mentioned above. Having been heard and passed from one judge to the other for more than two months, the petition was dismissed on the flimsy grounds that the trial was about to be concluded and that the delay had also been occurred due to adjournments sought by the accused, when, in fact, it was only in less than a dozen instances out of more than 50 that the court could attribute adjournments to the accused and that too because her counsel wasn’t available. The court also failed to see that during more than 50 dates of hearing the prosecution failed to produce witnesses and on several other occasions the trial judges were absent or the bar was on strike.
Was it realistic to hope for relief for the accused from the LHC? Given the recent trend in blasphemy cases, perhaps not. The court now seems to be firmly on the path of not providing any relief to the accused in most cases even where the evidence is weak, such as in Aasia Bibi’s case.
By Asad Jamal, a lawyer based in Lahore.
The crooked arm of the law
During the military dictatorship of General Ziaul Haq, Islamic laws on rape and adultery were introduced and some of the trials under them became subject of serious controversies. In several of these cases, women were tried and punished even when they themselves were victims of the crime. In other cases, women were tried and convicted only because they wanted to marry a man who their families did not approve of.
Safia Bibi, a blind girl from a village in Punjab, was gang-raped in 1981. In a brutal application of the rape laws, the police and the courts tried Bibi for the crime, along with the rapists. Her plea for acquittal from the case was rejected on the grounds that she had been unable to prove her innocence. The judge completely disregarded the fact that a blind woman, at the mercy of several men, could do nothing to stop them from violating her. In the same year, Fehmida Allah Baksh was put on trial for marrying of her own will. Both these women were given lashes as punishment by the court under the Hudood Ordinance.
Justice is the right of every Pakistani and the courts have been established so that they support the truth and be non-partisan while giving out judgments. Unfortunately, this is not what happens. The women who sought justice for Safia Bibi and Fehmida Allah Baksh were subjected to the worst form of torture by the police; they were beaten and arrested
By Attiya Dawood, a poet, playwright and activist.
An unimpeded amendment
First, the SC had to decide whether it has the jurisdiction to review and, if required, strike down amendments to the Constitution. The Constitution itself is clear: there is no limitation whatsoever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions. Relying on multiple legal fictions, however, the majority of judges held that the Parliament was not “completely sovereign”, and its powers to amend the Constitution were limited. The judges reasoned that all questions about what kind of a country Pakistan was going to be were resolved through consensus in the 1973 Constitution; any attempt by the Parliament to reopen those debates and reimagine Pakistan would risk “unleashing political tempests of unparalleled fury which may be difficult to control” and the SC was duty-bound to guard against that.
Second, the SC had to decide whether the trial of civilians by military courts was compatible with the independence of the judiciary and the right to a fair trial. Going against previous SC rulings and Pakistan’s international human rights obligations, the majority of the judges held that trials before military courts meet principles of criminal justice and the constitutional scheme allows deviation from standard procedure in exceptional cases (one may call it the “doctrine of necessity”).
On the one hand, the 21st Amendment further enhanced the judiciary’s own powers vis-a-vis the Parliament on spurious legal grounds. On the other, it failed to use that power to safeguard a fundamental principle of natural justice: the right of all persons to be tried by competent, independent and impartial tribunals in proceedings that are transparent and open to public scrutiny.
By Reema Omer, a lawyer based in Lahore.
Share your response for what the most controversial ruling passed by the superior judiciary has been, in the comments section below.
This was originally published in the Herald's October 2015 issue. To read more, subscribe to Herald's print edition.