A 25-year-old mother, Gullan Baro has been mercilessly killed on the pretext of ‘honour’. This shows yet again that our state is failing miserably to meet the most basic constitutional and moral obligations.
Many, like Kiva Malick, have examined the pernicious impact of ingrained and corrosive traditional-cultural ideas. But what is missing from our conversation is how our justice system is predatory, incapable of balancing and equalising the vast social disparities in knowledge, wealth, means, influence and status to ensure fairness. And how the state contrives to escape accountability by granting itself impunity; there is no statute for the miscarriage of justice.
In 2021, in response to the brutal murder of an 11-year-old in Islamabad, we asked in these pages, ‘Does anyone care about life?’ (November 17, 2021). Today, unfortunately, we are still asking the same question.
On paper, the legal framework for dealing with such crimes seems adequate to punish the offender, yet based on the incidence of gender-based violence, enforcement and deterrence are still problematic. The problem of social patriarchal values and mindsets is entwined with institutional culture and inefficiency. According to Aleena Khan, “Judges are political actors who, most of the time, deliberately let their biases against women seep into their decisions to give the already patriarchal laws more patriarchal interpretation”.
There is, consequently, an indecent litany of such offences and systemic failures including refusals to register FIRs, delays, unconscionable settlements under the Qisas & Diyat laws, and going soft on so-called ‘honour’-related crimes. Despite new tech-savvy military-style forces, the hard reality is that, given the conviction rate, an offender is more likely to escape justice than be punished.
Parliament and the courts are falling far short of their fiduciary obligations, failing to articulate a legal doctrine of operational autonomy in policing to ensure impartial justice for all. They have failed to ensure that critical operational gaps, including a force continuum and continuum of protection, clearly lay out the responsibility for protection and use of appropriate force across the different stages of the criminal justice and related processes.
In these circumstances, the penchant for new technology is a deflection: automation, digitalisation and fancy screens enable the powers that be to avoid the real hard questions. It is a layering on a system that is essentially broken.
Imagine Gullan Baro in our predatory justice system. A young woman, with all the social and economic disadvantages that entails, is trapped in a process that is not concerned with getting at the truth. It is, instead, a competition between two parties wherein the judge merely evaluates the evidence presented. Lawyers compete to present the best evidence, and the judge is simply a referee ensuring fairness in the process and application of the law. It presumes an ‘equality of arms’, where users have the necessary means to secure similar-quality legal expert services, which we know with considerable certainty is not the case. How many Gullan Baros can ensure effective fiduciary and legal support?
Besides the serious concerns about access, the quality of legal services, and unregulated fees, it is presumed that, as officers of the court, lawyers will press their cases efficiently, effectively and ethically. Barring a few exceptions, this is certainly not the case.
In the district courts, judges are not in control of their courtrooms, nor the judicial process, which is mired by adjournments, delays, escalating costs, lack of information, tactical abuse of process etc. There is no meaningful check or consequence for a judge repeatedly issuing ‘weak’ judgments.
Crucially, whilst dealing with vital matters of life and death, the justice sector has managed to make itself immune from the consequences of its inefficiency, maladministration and miscarriages of justice – there is no reckoning or compensation for such dysfunction. This poses very serious fundamental rights-related questions about access to justice, affordability, fair trial and legal exclusion that are not being addressed.
There is no justification for doggedly persisting with a system that has become so flawed and out of sync with society and its justice needs.
We must consider moving towards the inquisitorial system, adopting the necessary features to empower judges to better control the courtroom, the criminal justice and related processes from investigation, interrogating witnesses, protecting the vulnerable, filling in the procedural, operational and evidential gaps, and reducing delays to get to the truth.
An independent judge-led process may better manage and control inefficiencies, coordinate parties and respond to the institutional and social circumstances.
Second, a mechanism needs to be devised to safeguard vulnerable persons from a predatory justice system – covering police, prosecution, judiciary, prisons and the legal profession.
Third, as noted in our 2021 article, institutional audits need to be conducted to implement Justice Jawwad S Khawaja’s “due diligence of life” test to put in place the necessary due diligence standards, protections and safeguards: “In any incident, the question therefore is: was the event or incident reasonably foreseeable? If it is reasonably foreseeable, then those failing to take the necessary ‘due diligence to life’ precautions must be held to account and liable for their failure to implement adequate protections and safeguards”. It may well be that we need to consider a justice sector ombudsman to set the necessary standards, investigate and compensate for such failings.
Fourth, a miscarriage-of-justice law must be enacted to compensate victims and hold offending officials to account.
As a constitutional pillar and an institution of conscience, the judiciary must take the lead to rigorously evaluate the system against fundamental rights criteria, learn from new thinking centred around people (rather than institutions) and be bold enough to declare the flawed parts of the justice system redundant and compel a re-think.
Till then, such incidents must be independently investigated to address the gaps and fix responsibility for negligence, wrongdoing and criminality. We owe that to Gullan Baro.
The writer is a former secretary of the Law & Justice Commission of Pakistan.
