The writer is a lawyer.



THE tale of the two non-hangings is the tale of a criminal justice system largely discredited and irrelevant. Why is the state nurturing a penchant for quick convictions at the expense of our justice system’s safety? Why are we picking sides not principles, and confusing revenge with justice? Why are those in power strengthening the cynical belief that given our system breakdown only two wrongs can make a right in Pakistan?

The #SaveShafqat campaign resonated with many not because Shafqat’s innocence has been definitively proven by the Justice Project. It resonated because the evidence presented created reasonable doubt whether Shafqat was an adult at the time of his offence and conviction. If this evidence bears out, Shafqat’s trial and sentence would be miscarriage of justice. The reaction of those eager to see Shafqat hang without further inquiry is inexplicable. Wouldn’t verification of facts about Shafqat’s age after his execution be largely pointless?

This debate isn’t about the utility or wisdom of the death penalty, or whether the killer of an innocent seven-year old should be punished, or the pain of the victim’s unfortunate parents. The simple question is whether we should execute someone who might have been 14 when accused of committing a heinous offence or desist from inflicting death till we have confirmed the disputed facts one way or another.

The primary objects of a punishment system are retribution, deterrence and reform. Retribution is based on the eye-for-eye logic. If you wrong a fellow citizen, the state on behalf of the one wronged will settle the score. Deterrence aims at societal control. If everyone is convinced of the certainty of punishment for wrongdoing, those with a delinquent gene will be dissuaded. The logic of reform is supported by belief in the basic goodness of humans: the state must try to reintegrate into society even those who go wayward.

All these objects are rooted in the notion of human agency and rational choice: every person is free to choose his actions and those whose actions harm others ought to bear the consequences. Exceptions? Those who are either not free to choose or unable to understand the consequences of their actions. Thus you don’t chop off the hand of a starving man who steals bread to stay alive and you don’t hang a lunatic who inadvertently causes death. Likewise you don’t kill minors even for heinous offences because of their limited human agency.


Social and economic inequalities load our criminal justice system against the poor.


Legal systems are meant to ensure legal equality. But they don’t. Social and economic inequalities load our criminal justice system against the poor. It is commonplace for police to round up domestic help if a crime is committed in an affluent household. What follows is generally torture. To find clues to crime our system relies on the subjective judgment of the police and their extensive experience of beating up suspects. In a nutshell we don’t have an investigation-driven but a torture-induced confession-based prosecution system.

The argument against inquiring into Shafqat’s age is that the issue wasn’t raised during his trial. Shafqat’s mother didn’t have the money to travel to Karachi to see her boy one last time before he swings. If he were indeed a minor at the time of offence, what resources could this youth-labourer commit to a half-decent defence? Many of us can’t empathise with him because we have never been caught at the wrong end of the system. And we only relate to the innocent seven-year old because our kids aren’t destined to be 14-year old watchmen.

The story of Saulat Mirza, the other death-row convict whose noose came off last minute, is more dramatic. Reportedly, while held at Attock Fort Nawaz Sharif requested jail authorities to switch off the light above his cell to enable him to sleep at night, to be told that it was against the jail manual. But notwithstanding this manual we have had Saulat Mirza filmed days before his hanging, his incriminating choreographed video simultaneously released across TV channels to a dumbstruck nation hours before his execution, which was then suspended.

Saulat Mirza has said on screen what is urban legend. MQM-led Karachi functions under a reign of terror, with politics of fear, extortion and censorship deeply entrenched. MQM’s representative credentials are not in question. But neither is the public perception about MQM’s brutal and deathly ways, which augments the party’s influence and control further. PPP (with its Uzair Balochs) and ANP might have followed in MQM’s stead. But MQM contrived and perfected this form of politics.

Saulat Mirza has corroborated what Zulfiqar Mirza alleged, what innumerable JIT reveal and what Supreme Court insinuated in a Karachi law and order case. This brand of politics — of blood, fear and extortion — must be extinguished. But has it existed thus far without the establishment’s collusion? One general decided in the 1980s that MQM needed to be propped up, another in the early 1990s that it needed to be shut down or a rival MQM-H created, and another in the late 1990s that it needed to be rejuvenated and Karachi handed over to it.

What are today’s generals thinking? That this brand of politics is to be decimated or MQM’s present leadership? The two suspects in Dr Imran Farooq’s murder have allegedly been in ISI custody for some years, but not handed to the Brits. The Baldia-related JIT languished in ISI/Rangers’ custody for over a year and half before making it to court. Why isn’t the law allowed to take its course to bring Karachi to peace and justice? If the content of Saulat’s allegations is true, why make it suspect by delivering it in a sneaky manner?

We need a UK-style Criminal Cases Review Commission to investigate and send cases marred by fears of miscarriage of justice, such as that of Shafqat Hussain, back to the Supreme Court for reconsideration. But what we need more is unmolested rule of law. We need to build the capacity and credibility of our criminal justice system instead of delegitimising it further by using media trials to substitute formal legal processes as in the Saulat Mirza case.

The writer is a lawyer.

sattar@post.harvard.edu

Twitter: @babar_sattar

Published in Dawn March 23rd , 2015