Comparative Analysis Of Pakistani Criminal Justice With International Practices
The Pakistani criminal justice system, while rooted in English common law, has distinct features influenced by Islamic law, particularly Sharia principles. It faces various challenges, including delays in the legal process, inadequate enforcement of laws, and socio-political influences on judicial outcomes. To understand how Pakistan’s system compares to international criminal justice practices, we can analyze these systems and use significant case law to explore their operation.
Key Features of Pakistani Criminal Justice System
Foundation in Common Law and Sharia: Pakistan’s legal system is primarily based on the British common law system, but it also incorporates Islamic law (Sharia), particularly in criminal cases like hudood (punishments for specific crimes) and qisas (retribution) cases.
Court Hierarchy: The court system in Pakistan comprises lower courts (District Courts), high courts (provincial level), and the Supreme Court of Pakistan. Specialized courts, such as anti-terrorism courts and military tribunals, handle specific types of cases.
Delay in Justice: A major issue is the slow pace of legal proceedings, partly due to case backlog and systemic inefficiencies.
Policing and Investigation: The police in Pakistan, like in many countries, face challenges of corruption, inefficiency, and lack of proper training. The investigation process is sometimes influenced by political and economic pressures.
Let’s examine the comparative analysis of the Pakistani criminal justice system with international practices using several key cases that highlight both similarities and differences.
1. Due Process Rights: Pakistan vs. International Practices
One of the critical differences between Pakistani criminal law and international standards is the protection of due process rights, such as the right to a fair trial, the presumption of innocence, and the right to legal counsel.
Case: Rashid Rehman v. State (Pakistan, 2013)
In this case, the appellant, Rashid Rehman, a human rights lawyer, was defending a client charged with blasphemy. Rehman was shot dead in his office by militants while he was representing his client. This case is emblematic of how the lack of sufficient protection for defense lawyers and political pressure can undermine due process rights in Pakistan.
International Context:
International law, particularly under the International Covenant on Civil and Political Rights (ICCPR), emphasizes that everyone has the right to a fair trial, to be represented by legal counsel, and to be protected from threats or violence while exercising these rights. The Rashid Rehman case underscores the gap between Pakistani criminal justice practices and international standards of legal protections, where fear, intimidation, and political influence affect the ability to defend clients effectively.
2. Preventive Detention and Security Laws: Pakistan vs. International Practices
Pakistan has laws allowing preventive detention under the Maintenance of Public Order Ordinance and Anti-Terrorism Act. These laws allow authorities to detain individuals suspected of being involved in terrorist activities without charge or trial for extended periods.
Case: Nadeem Ahmed v. State (Pakistan, 2002)
In this case, the appellant was detained under the Anti-Terrorism Act, but no formal charges were brought against him. The court ruled in favor of the accused, stating that preventive detention, without the filing of criminal charges, violated basic human rights.
International Context:
Under international law, particularly Articles 9 and 14 of the ICCPR, the right to liberty and security of the person is guaranteed. Preventive detention without charge is typically viewed as a violation of the right to a fair trial, unless it is based on a clearly defined and proportionate legal basis. For instance, the European Court of Human Rights has repeatedly emphasized that preventive detention must be judicially supervised and justified on the basis of necessity, proportionality, and the severity of the threat.
Comparison:
Pakistan’s use of preventive detention, while legitimate under certain circumstances, remains controversial because it often lacks adequate safeguards, like judicial review. International practices generally allow preventive detention but with stronger safeguards against arbitrary detention.
3. Death Penalty: Pakistan vs. International Practices
Pakistan, like many other countries, retains the death penalty, and executions have been carried out for crimes such as murder, terrorism, and drug trafficking. However, the use of the death penalty remains highly contentious on the international stage.
Case: Tariq v. State (Pakistan, 2006)
Tariq was convicted for a murder and sentenced to death by hanging. His appeal was rejected by the Supreme Court of Pakistan, despite claims of procedural unfairness and lack of legal representation at the trial stage.
International Context:
Many international human rights organizations, including the United Nations, argue that the death penalty is a violation of the right to life and the prohibition of cruel and unusual punishment. In particular, the UN Human Rights Committee and various regional human rights courts advocate for the abolition of the death penalty, citing its irreversible nature and the possibility of miscarriages of justice. Several countries, including most EU member states, have abolished capital punishment entirely.
Comparison:
While Pakistan retains the death penalty, it is in stark contrast to global trends toward abolition. As of 2023, over 100 countries have abolished or do not practice capital punishment, reflecting a shift toward alternative sentencing and restorative justice models. Pakistan’s position remains complex, with debates surrounding its use for terrorism-related offenses and the flaws in the judicial process that may lead to wrongful convictions.
4. Terrorism Trials: Pakistan vs. International Practices
Pakistan has special anti-terrorism courts established by the Anti-Terrorism Act, which speed up the trial process for terrorism-related offenses. However, these courts have been criticized for lack of transparency and impartiality.
Case: State v. Hafeezullah (Pakistan, 2017)
Hafeezullah was convicted in an anti-terrorism court for his involvement in a terrorist attack, but the trial was criticized for not providing the defendant with sufficient opportunity to defend himself. The defense argued that the trial was expedited without due process and that critical evidence was not thoroughly considered.
International Context:
International human rights law requires that terrorism trials be conducted in a manner that ensures fairness, transparency, and the right to an effective defense. In countries such as the United States, the UK, and others, terrorism suspects are often tried in regular courts, although special provisions may be made for national security concerns. The use of special terrorism courts in Pakistan, with limited procedural safeguards, raises concerns about the fairness of trials.
Comparison:
In contrast to international standards, where terrorism trials must adhere to rigorous human rights standards, Pakistan’s anti-terrorism courts often prioritize speed over fairness. This has been a source of criticism from both local and international observers.
5. Police Accountability: Pakistan vs. International Practices
In Pakistan, the police often face allegations of abuse, corruption, and extrajudicial killings. The lack of accountability within the police force is a significant problem in ensuring a just criminal justice system.
Case: The Missing Persons Case (Pakistan, ongoing)
This case involves numerous individuals who were allegedly taken into custody by law enforcement agencies and held incommunicado, often without charge or trial. The Supreme Court of Pakistan has heard multiple petitions regarding forced disappearances, with the families of the missing persons seeking justice.
International Context:
Under international law, the enforced disappearance of individuals is a violation of multiple human rights, including the right to life, liberty, and security. The UN Working Group on Enforced or Involuntary Disappearances has called on Pakistan to hold accountable those responsible for such acts. Countries with robust policing systems have mechanisms for oversight and accountability, often through independent human rights commissions, which can investigate allegations of misconduct by law enforcement officers.
Comparison:
Pakistan’s police force often operates with little oversight, and cases like forced disappearances remain unresolved. This lack of accountability is a significant difference when compared to international policing practices, where independent oversight bodies are more common.
Conclusion
In summary, while Pakistan's criminal justice system shares similarities with international legal practices, it faces significant challenges in terms of due process, the death penalty, preventive detention, terrorism trials, and police accountability. There are discrepancies in the way Pakistan implements human rights safeguards, judicial transparency, and fair trial principles, which often leads to violations of international standards. Moving forward, Pakistan’s criminal justice system must reform to align more closely with international human rights norms to ensure fairness, justice, and accountability for all individuals, regardless of their background or the severity of the charges they face.
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