The News on Sunday -- May 23, 99

Trials by error?

Nusrat Amin on constant options of parallel justice sans the redressal of the regular trial system and the possible repercussions of Anti-Terrorism Courts

Judicial infrastructure does actually exist in Pakistan. However, over the years the entire system has been distorted and exploited. Instead of establishing countless trial forum, parallel to regular courts, the authorities should have concentrated and worked on making the regular trial system more effective, organised and speedy.

This was repeatedly suggested by many serious and prominent elements in political, human rights and legal circles. Despite the miserable failure of specially constituted parallel courts in the past, the practice continues. The Anti-Terrorist Courts is yet another such example and have been established after severe controversies and litigations.

There is, however, a big difference. This time, these courts have been constituted in consultation with the Supreme Court after the apex court abolished military trial courts which were imposed by our present government.

Interestingly, another unprecedented fact is that the judiciary itself is making efforts to have its directives implemented. While some believe that implementation on court orders is an exclusive responsibility of the government, SC has appointed Justice Nasir Aslam Zahid to get its orders executed as well as supervise its function under the apex court's nine-point guideline. And a good reason is the fact that the superior judiciary has lost faith in government machinery.

Regarding the Supreme Court's nine-point guideline, ex-Chief Justice of Pakistan Justice Sajjad Ali Shah says: "Supervising ATC function under the guideline was not the job of Justice Nasir Aslam Zahid. A government functionary could have been appointed to check and ensure the implementation of directives."

As a matter of fact, the judiciary interprets law, invokes it and an executing agency has to implement accordingly. Justice Sajjad, in this regard, holds that it is once again a fact that SC lacks trust in the government which made it appoint Justice Zahid to ensure implementation.

The question of merit and qualification of ATC judges was also an important issue which apparently, has been resolved. The judiciary wanted sessions judges to hold ATCs while the government intended to appoint certain lawyers. The possibility of the described settlement is defined, in Sajjad's words, as: "It appears that the two institutions have reached an understanding whereby, lawyers have been appointed in Punjab whereas in Karachi, presiding officers of all ATCs have been taken from sessions courts. I feel this has come out of a compromise between the judiciary and the legislature."

And this is what Sajjad had already hinted at in an earlier interview in the context of superior courts when he said: "Appointments are being made in high courts and the Supreme Court but it appears that it was being done by way of compromises."

As has been said, the fault exists with our investigation and prosecution institutions and not with the entire judicial system. Appointment of more sessions judges and a reasonable enhancement of court rooms could have resolved the issue effectively. "More judges should have been appointed in regular trial courts whereas our prosecution and investigation should be reformed to make trial process desirably effective. But instead, the Anti-Terrorist Bill was moved," he comments.

Ignoring all such suggestions, the government once again moved to repeat past decisions which have never worked effectually. It introduced the Anti-Terrorism Ordinance which, according to sources, many senior jurists and the then Chief Justice of Pakistan had strongly opposed. But there were some new suggestions.

"I opposed certain provisions in the proposed bill as it had certain provisions whereby unlimited powers were conferred on police officers, their entering houses and shooting at sight for instance, in case the officer personally apprehends that any act of terrorism is about to be committed."

Worth mentioning is the fact that Supreme Court had finally struck down several provisions in the bill for their being in violation of fundamental rights. This SC judgement had arrived by the time Justice Sajjad had quit his post.

Another point of conflict was the question of appointment of judges. The SC desired that appointments should be made by high court judges and not the government. The ATA Ordinance had contained some provisions whereby some modifications were made to include the ill-defined civil commotion that included chalking on walls. These amendments were criticised on the ground that they were introduced to be applied against the opposition. "This was more of a political move and was based on the government's malafide intentions," comments eminent Supreme Court lawyer and constitutional expert Abdul Mujeeb Pirzada.

Now, about the ATCs' function: The courts started functioning last week and has claimed its first prey with the re-arrest of a 13-year-old boy who had already been acquitted by a defunct military trial court.

Although, the legal provision whereby the child has been re-arrested could be debatable, the fact remains that he had been acquitted by the defunct court no matter on what ground. Does this provide room to re-try the case of Rafi Bubbly who had been awarded capital punishment and thus executed?

Regarding the ATCs' function and quality, Mujeeb Pirzada observes that the ATCs would attend selected cases. It depends upon the interests of the authorities as to which case these courts should proceed with. And most important is the fact that the authorities operate under the government's instructions.

Although, he believes, the ATCs will work as a parallel system, it might give quality justice. But, he explains, the quality of justice depends on the quality of investigation which is conducted by government agencies, making the government more able to concentrate on the investigation process, exclusively for some selected cases to be disposed in considerable amount of time. "If a court recieves effective investigation and prosecution details besides having enough time to record evidence and depositions, there should be no room for bad quality justice; no matter under what law it functions."

He also asserts: "But the problem is, we cannot live with so many judicial platforms apart from the regular trial system. In case of such parallel systems, the quality of justice can only be achieved if there is someone to classify between important and unimportant cases. And unfortunately, this someone is the government itself and its authorities. Thus, the problem begins right where it ends."

Asked as to why sessions judges have been appointed in Karachi-based ATCs whereas lawyers have been recruited in Punjab's ATCs, he says: "May be the Chief Justice of Sindh High Court (SHC) had a view different from that of the chiefs of the other three high courts as he considered sessions judges to be appointed in ATCs. As far as the lawyers are concerned, many of them qualify as judge. It should not be a matter of dispute. Had I been offered, I would have refused to be an ATC judge because of my seniority as a Supreme Court lawyer."

Regarding inclusion of a provision whereby an ATC court can proceed with cases of wall chalking, he says: "This has nothing to do with terrorism. This is political since wall chalking is 'committed' by political opponents. Inclusion of this provision hints at nothing else but the government's malafide intentions."

Former President Karachi Bar Association (KBA) Muhammad Amin Lakhani looks at the ATC issue in a different perspective. He believes that under the ATA, the basic rights of an accused will probably be suppressed.

He elaborates: "There is a proper trial procedure which includes a given time period to interrogate an accused, investigate cases, produce investigation papers, supply a copy to the accused, proper adjournments and enough time to let the accused collect favorable evidence and witnesses. The ATCs will hardly be able to follow the entire procedure as they have been assigned to dispose cases through a short-cut."

Lakhani is of the view that the entire trial procedure might fall victim to contradictions and lacunae besides unjust adjournments that might influence the normal course of trial -- that is the prime concern for justice. "Any justice other than that provided by a normal course might be suspect."

The ATCs might provide justice but generally, they give the impression that the government wanted to achieve political goals through this forum. An improved and reformed trial system by our sessions courts would have been the best redressal and proved to be a solution for our grievances," he concludes.