M Abdul Samad
THE legitimacy of a criminal justice system is not measured by how severely it punishes the guilty, but by how faithfully it upholds the law, even in the face of the most reprehensible allegations. In recent times, the apparent public acceptance of extrajudicial killings has raised a question that deserves serious reflection: can justice truly be served by circumventing the very institutions established to administer it?
The Constitution of Pakistan leaves little room for ambiguity. Article 9 safeguards the right to life and liberty, while Article 10A guarantees fair trial and due process. These are not privileges extended selectively to those deemed deserving of sympathy; they are fundamental rights guaranteed to every individual. The presumption of innocence remains an indispensable principle of criminal jurisprudence, irrespective of the gravity of the accusation.
The distinction between investigation and adjudication is equally fundamental. The police are entrusted with investigating offences and bringing accused persons before courts of competent jurisdiction. The determination of guilt and imposition of punishment rest with the judiciary. Any departure from this constitutional arrangement risks reducing the administration of justice to an arbitrary exercise of executive power.
The principle of audi alteram partem, that no person should be condemned unheard, is not merely a Latin maxim confined to legal textbooks. It embodies the very essence of procedural fairness. An accused person, however unpopular, cannot be deprived of the protection of law merely because public sentiment demands an immediate reckoning.
Certainly, the lawful use of force in genuine circumstances of imminent danger cannot be equated with a deliberate extrajudicial execution. Nevertheless, allegations of police encounters, particularly those involving persons already in custody, warrant rigorous and independent scrutiny. Section 176 of the Code of Criminal Procedure, 1898, mandates a magisterial inquiry into deaths occurring in police custody. The purpose of such safeguards is to ensure that the coercive authority of the State remains answerable to law.
It would be equally unrealistic to disregard the deficiencies within our criminal justice system. Protracted trials, defective investigations and weak prosecutions have undoubtedly eroded public confidence. Yet institutional shortcomings cannot furnish a justification for dispensing with due process. To permit otherwise would be to substitute the rule of law with the rule of discretion, a precedent far more dangerous than the crimes it purports to address.
The way forward lies in strengthening investigative competence, ensuring prosecutorial accountability, expediting criminal trials and subjecting every questionable custodial death to impartial judicial scrutiny. Equally important is cultivating public confidence in the courts through consistent, transparent and timely adjudication.
A mature society must resist the temptation to confuse vengeance with justice. The authority of the State derives its legitimacy from adherence to law, not from its capacity to exercise force. Ultimately, justice is not strengthened when an accused is denied his day in court; it is strengthened when even the most reviled individual is afforded one.
—The writer is legal analyst.
