The Crippling State of Public Prosecution

 The competent prosecution of criminal offences is a fundamental term of our social contract. The state investigates, arms the prosecutor, determines and provides the venue for litigation and hands down the sentence to the guilty. In return, citizens are entitled to expect that criminal prosecutions are properly financed and capably litigated.[1] However, the reality bears no correlation to the fundamental terms of our social contract.

Pakistan’s legal system is a derivative of the English legal system. However, unlike the latter, the legal system in Pakistan is confronted with an array of problems. A look into our legal framework reflects that the prosecution department is not delivering its full potential. Is it because of the deprivation of funds or shortage of staff? We shall examine the factors that contribute to this underperformance through the course of this article.

Until a few years ago, all prosecutions in the High Courts were conducted by the Advocate General’s office. It eventually separated itself from criminal prosecutions when the Punjab Criminal Prosecution department was launched. Administering justice with a designated department to cater to criminal prosecutions was a plausible move indeed. However, the department has been struggling to uphold its true purpose and has not been able to come out of the woods yet.

Before homing in to the glitches within the prosecution department, it is important to bear in mind that it is a government establishment.[2] The deprivation of funds have had some serious implications over the performance of public prosecutors trying to establish the guilt of the accused. It would be fair to comment that these financial implications have left the department in a crippling state. Low levels of motivation, accompanied by a lack of appropriate infrastructure and lack of an extensive variety of books and law resources have contributed dearly to the cause. On the other hand, the defense counsel (who are privately funded) have access to a wide range of facilities, ensuring that they will always have an upper hand over public prosecutors unless things change drastically. The current financial situation of public prosecutors also makes them susceptible to gain finances through illegal means.[3]

Pre-Trial Arrest and Detention – Its Place In Islamic Criminal Law and Procedure

This article aims to highlight the scope of pre-trial arrest and detention[1] in Islamic criminal law and procedure.[2] The nature and history of Islamic criminal law is an exceptionally intricate subject and requires analysis at a much broader scale. More so, specific sources on the issue of pre-trial detention are scant and reflect the lack of a uniform body of rules and procedures under Islamic criminal law. It is, therefore, pointed out at the outset that while this article has been written with extreme care and thought based on different sources available, it is merely a humble effort to better the understanding of the place and significance of pre-trial detention in Islamic criminal law and procedure with the consequential deduction that pre-trial detention in Islamic criminal law and procedure is justifiable according to the Islamic injunctions in today’s criminal justice system.

Introduction

The requirement of religious legitimacy for any law in Pakistan is well spelt out in Article 227 of the Constitution of Pakistan, 1973.[3] Therefore, we need not have any other academic reason, of which there are many, to justify making laws for Pakistan that are ‘Islamic’. Why is it significant then to explore religious legitimacy for pre-trial arrest and detention powers conferred upon state officials when there are, arguably, checks and balances in place in the relevant laws, laid out and emphasized through sound and well-reasoned case law? The answer perhaps is that “the Islamic pedigree of any law or legal construct is a crucial source and measure of its legitimacy in Muslim eyes”.[4]

What are criminal offences, what conduct is considered criminal and what punishments follow in the Islamic legal system, has been well established over a thousand years ago and is a major component of Islamic legal jurisprudence.[5] This framework of a penal code in the Islamic criminal legal system, as it is well settled by now, revolves around three main categories of criminal acts or crimes.[6]

The Quran and Sunnah, being the primary sources of Islamic law, gave the basis to categorize forbidden acts and accompanying penalties. We also find some references to procedural matters as put down by the Prophet (peace be upon him) when he declared that, “The onus of proof lies with the claimant and denial shall be supported by oath.”[7] In another instance, the Prophet (PBUH) is reported to have told his wife, Hazrat Aisha (RA), to “…remove punishments as possible as you can; and set the accused free if he has a chance, because it’s much better for the judge to be wrong in acquittal than to be wrong in punishment.”[8] The Prophet (PBUH), while sending Ali b. Ibi Talib (RA) to Yemen as governor, instructed him that, “People will bring their cases to you, so when litigants come to you, then don’t decide for the one [claimant] till you hear from the other [defendant]. It is a better way to know who should have the case decided in his favour.”[9] One of most comprehensive narrations on procedural law and the administration of justice comes from Hazrat Umar (RA) in his letter[10] to Abu Mosa al-Ashari.

Fundamental Rights and How to Enforce Them

 Introduction to Human Rights, Constitutional Rights and Fundamental Rights

Every human being is entitled to enjoy his or her human rights without distinction of race, colour, sex, language, religion, political or other opinion, social origin, property, birth or other status. The following are the most important characteristics of human rights:

• Respect for the dignity and worth of each other;
• Universality – they are equally applicable to all without discrimination;
• Inalienability – no one can restrict, deny or take away the human rights of a person (other than in specific situations permitted under the law);
• Indivisibility, interrelatedness and interdependence.

States are obliged to protect, promote and ensure the enjoyment of human rights. Most human rights are owed by states to “all people” within their territory, while certain human rights are owed by states to “particular groups of people”. The main difference between human rights and fundamental rights is territorial. Human rights are ‘universal’ and without any limitation. In contrast, fundamental rights exist within a specific legal system whereby a right is an interest recognized and protected by law.

When a right is safeguarded by a Constitutional guarantee, it is known as a ‘fundamental right’ which gets placed beyond the power of any organ of the state and neither the executive nor the legislature shall act in violation of it. Such a right cannot be taken away, suspended or restricted, unless expressly provided for in the Constitution. It has been held in the case PLD 1969 S.C. 387 that an ‘ordinary right’ on the other hand can be enlarged, abridged or destroyed by an ordinary enactment.

In Pakistan, fundamental rights have been enshrined in Chapter II and Articles 8-28 of the Constitution of Pakistan, 1973. Articles 15-20, 23 and 25 address the fundamental rights of citizens of Pakistan, while Articles 9-14, 21, 22 and 24 address the rights of a person in general.

Fundamental rights are the crown jewels of democracy, however, they may have limitations placed upon them as well. According to John Locke,

“The state of ‘absolute freedom’ is fraught with disadvantages, inconvenience and dangers. The enjoyment of natural rights would be uncertain and constantly exposed to the invasions of others. In punishing infractions of the law each man would be a judge of his own cause and would be liable to exceed the rule of reason in avenging transgression.”

This means that in democratic societies, certain rights may have limitations placed upon them in order to uphold the constitutional themes of democracy, equality, freedom, tolerance, and social, economic and political justice.

Extending Women’s Rights to Unilateral, No-Fault Based Khula

The injunctions of Islam regarding gender are based on equality without any discrimination whatsoever. However, women in Pakistan have been struggling to obtain these rights guaranteed under Islam, specifically the right to khula to end marriage without the husband’s consent.

Previously, Hanafi, Shafi, Hanbali and Shia Ithna Ashari law, along with the Judicial Committee of the Privy Council 1867 required the husband’s permission for the dissolution of marriage.[1] It was stated that the matrimonial law of Mohamedans favoured the ‘more vigorous’ sex, so a woman could not dissolve marital ties, except under an arrangement called khula made upon terms to which both parties’ consented.[2] Due to this stance and court judgments like Umar Bibi v Muhammad Din,[3] women were forced to stay married despite mutual disliking or incompatibility. They were required to rely on the birth of children to fill their marriage with love, satisfaction and blessing.[4]

It is for these reasons that the decision of superior court judges in Pakistan to give women the right to no-fault based unilateral divorce has been revolutionary. This article will focus on the methods and methodological tools used by Pakistani courts in extending a woman’s right to dissolve a marriage, while taking into account the position of classical jurists and critical case judgments.

A key methodology which aided the judges in creating a more inclusive and holistic approach when reinterpreting the primary sources of Islamic law regarding women’s right to khula was ijtihad. Before a landmark judgment in 1959, obtaining consent had been necessary for the dissolution of marriage, otherwise it was feared that the institution of marriage would be destabilized.[5] Progress in the area was a slow one and began with the Dissolution of Muslim Marriages Act in 1939 which granted Muslim wives the right to obtain divorce on any grounds recognized as valid for the dissolution of marriage under Muslim law.[6] In 1955, the Muslim and Family Commission was created to reform family laws and further protect women’s rights.[7] Unfortunately, it was met with a lot of criticism and there were even protests claiming that it was trying to westernize the society by increasing the legal age of marriage and requiring the registration of marriages and divorces, among other things.[8]

Continuing Mandamus: Productive or Deleterious Overreach?

 Mandamus is a type of writ issued by the court to direct a public body to do something that the law requires it to do. The doctrine of ‘continuing mandamus’ has been derived from the writ of mandamus, which means that the matter is not disposed of even after the court has given directions, instead it remains pending while the court assumes a supervisory role to prevent any mischief in question and makes repeated orders to ensure compliance and enforcement of its directions within a stipulated period of time, without delay.

The doctrine of continuing mandamus is said to have originated in the case of Vineet Narain v. Union of India, (1998) 1 SCC 226, wherein the Supreme Court of India, while dilating upon and granting the prayers of the petitioners, deployed the canon of continuing mandamus to ensure that the investigation by the Central Bureau of Investigation (CBI) was handled correctly. The court kept the matter pending for a long time and demanded continuous reports, between reasonable intervals, to ensure compliance with its orders. The following was stated in the Vineet Narain case:

“Having regard to the direction in which the investigations were leading, we found it necessary to direct the CBI not to report the progress of the investigations to the person occupying the highest office in the political executive this was done to eliminate any impression of bias or lack of fairness or objectivity and to maintain the credibility of the investigations. In short, the procedure adopted was of “continuing mandamus.”[1]

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“… During the monitoring of the investigations, the Solicitor General/Attorney General, from time to time, reported the progress made during the course of investigation, in order to satisfy us that the agencies were not continuing to drag their feet and the “continuing mandamus” was having the effect of making the agencies perform their statutory function.”[2]