Delay in justice By Kunwar Idris - Thursday 5th May 2011

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IN the surge of sympathy for Mukhtar Mai, a thought must be spared for the accused who suffered the rigours of jail for nine years without being found guilty of rape or abetting it.
The real cause of concern in the Mukhtar Mai saga should not be the Supreme Court’s “deeply disappointing” judgment, as the Dawn editorial of April 23 put it, but the horrendous delays in the dispensation of justice (or injustice) in our legal system.
There has been an understandable outpouring of anger over the final acquittal of all but one accused. What is not so clear, however, is the absence of any expression of remorse on the agony suffered by the accused (and their families).
Most comments on the judgment have been unjustifiably harsh or patently unfair, some touching the fringes of contempt.
Particularly regrettable has been the hurried statement of Asma Jahangir, the president of the Supreme Court Bar Association, that appears to imply that the judges had given the decision without weighing the evidence on record.
The US-based Human Rights Watch betrayed both ignorance and bias by observing that the “Supreme Court had repeatedly shown itself quite capable of demanding more evidence and reinvestigation in instances where it served a political purpose”.
This seems to imply public popularity. That purpose would have been better served if the Supreme Court had convicted all the accused.
The same must be said about the comment of the Human Rights Watch that “while Pakistan’s judiciary is now independent, it retains a deeply embedded bias against women in particular and on rights issues in general”. The perception of many within the country is to the contrary.
While the charge of bias against women has no basis, the Supreme Court, and the high courts as well, need to be more vigilant, prompt and sympathetic in enforcing human rights. The petitions for rights take long to be admitted and longer to be heard and decided, if they are at all admitted. For this, some of the blame must be shouldered by the government and the political parties who through their malpractices, corruption and unnecessary references keep the courts preoccupied, and the judges, seemingly, revel in that.
The courts would have much more time to spare for human rights if the government were not to appoint and promote civil servants arbitrarily or, taking another instance, if the legislators were not to conceal their assets and forge their degrees. Now the ruling party has found yet another device to keep the judges of the Supreme Court occupied and enable a larger number of lawyers to earn fees (perhaps from a depleted exchequer) by seeking the court’s opinion on issues related to the hanging of its founder Z.A. Bhutto.
This is unlikely to serve the intended purpose as it may prove difficult to question legal propriety or to impute dishonourable motives to judicial predecessors of more than 30 years ago. Nearly all of them are dead. But no doubt the petition would prolong the uncertainty for more than hundreds of convicts on death row waiting for their more or less final plea for life to be heard and thousands of other citizens waiting for their fundamental rights to be vindicated.
An increasing tendency to approach the apex court for the review of its orders further detracts from the normal responsibilities of the superior judiciary. It can only be hoped that the government and supporters of Mukhtar Mai do not add to the delay by filing review petitions against the order of acquittal. If the facts were to be sifted from the flurry of received wisdom and wishful thinking that characterise the critical comments, there appears to be little ground for such a review.
Dawn, too, fell victim to this ‘received wisdom’ when it argued that “this is no ordinary case … if rape with multiple witnesses and such extensive media coverage goes unpunished, what Pakistani rape victim will try to obtain justice?” The law admits of no distinction between an ordinary or an extraordinary case. The expectation that the accused should have been punished because the crime was widely publicised at home and abroad is preposterous. Further, no court is expected to be “pro-people”. But nor should it be anti-people.
The courts must apply the law with cold reason as the only guide without fear or favour. If not, the whole judicial system at least the highest court of the land should be free not from political meddling alone but also from vested interests, professional lobbies and, more important, street pressures.
Reverting to the point that was made at the beginning of this article what most ails the system of our criminal justice is delay at every stage — in lodging the complaint, in investigation and then in trial, appeals and now also reviews. In this long course, the facts are distorted and in the case of well-known persons, passions or vengeance may come to dominate.
Pakistan’s tribal areas turned restive once the rough-and-ready jirga justice was replaced by complex penal laws and cumbersome procedures. Adjudication that took days and little expense now takes years and costs a fortune without improving the quality of justice. Hence the tribal insurgency. In fact, that fate seems to be befalling the whole country.

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