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Pervez Saleem (Producer/Director)

How to get away with murder — Pakistan edition

Courtesy: Dawn News

Video: YouTube/Dawn New

We made a croissant of the law, layering it when we should have simplified it, and because this incident just doesn’t fit into the definition of terrorism, it’s over, and Jatoi is free.

One of the easier things to write about in Pakistan is travesties in criminal justice. Easy because the tedium of tracing the ugly mutations of the law has already been done and can simply be referred to in a hyperlink.

Easy because these travesties happen so often, chances are you’ve written about them yourself.

Finally, easy because it is cathartic. It is also the moral duty of everyone who can explain the sham that is our criminal justice system after the influence of blood pardons — and to do so repeatedly.

The fault in our laws

First, let’s get the problems with the law out of the way.

The Supreme Court of the 1990s didn’t quite fancy themselves as dam engineers or city planners, but they did reckon a set of religious scholars lived within their hearts.

In the Federation v Gul Hassan, the Supreme Court declared parts of the penal code unIslamic because they didn’t contain space for Qisas and Diyat — the allowances of retribution and payments of blood money.

The court wanted this available in cases where murder wasn’t deliberate. The state delivered an ordinance and later, an Act of law which allowed for the blanket use of Qisas and Diyat, even where murder was deliberate. Thus was born what is commonly known as the Qisas and Diyat Ordinance, making drastic changes in Chapter 16 of the British-era Pakistan Penal Code related to offences affecting the human body.

Sections 299 to 338 of the PPC, related to bodily hurt and murder, were repealed and replaced with new provisions, which the then government claimed were in accordance with the Islamic injunctions and the Supreme Court’s judgment. Similarly, some provisions of the Criminal Procedure Code, 1898, were amended and legal heirs of a deceased person were authorised to enter into compromise with a killer, even at the last moment before the execution of a sentence.

In the Middle East, forgiveness for accidental murder is a possibility by family members, but not where it is deliberate. According to Mohammed Fadel, Professor of Law and Economics of Islamic Law at the University of Toronto, “In the ordinary case of homicide, which is, as an initial matter in Islamic law, viewed as an injury to a specific person, the reason why the family can forgive is the assumption that the killer may have acted in the moment out of anger; out of a rush of adrenaline because he got caught up in a fight that got out of hand with the victim and ended up killing him. Even though the killing was intentional, he didn’t have malice of forethought that led him to do that. So therefore, there’s a good argument that this act of the defendant is not part of the murderer’s character, and therefore if the victim’s [family] forgave him, it doesn’t represent a terrible threat to the public at large.”

Fadel adds that unlike “killing in error, premeditated murders in early Islamic law scripts were titled Gheila, an Arabic term connoting killings by deceit and treachery,” the International Bar Association quoted him as saying.

“In the case of murder with premeditation and with malice, however, the viciousness of the act suggests something much deeper about the criminality of the defendant, that the defendant who does such an act is a danger to everybody and therefore is a threat to the public order at large. Accordingly, it would not make sense to allow private interests of forgiveness to overcome the public’s interest in punishment of a malicious defendant,” said Fadel.

Of course, exceptions are carved out of the Middle Eastern law when really tested, as occurs wherever there is a lack of democracy. So those awarded death in the Khashoggi murder were pardoned by the victim’s family who remained in Saudi Arabia. Space for this pardon became possible after the Saudi courts running the trial and awarding eventual death sentences held that the baiting and butchering of Khashoggi, possible only with weeks of planning for the exact moment he would turn up to renew his passport, were not premeditated.

According to more progressive scholars such as Javed Ghamidi, even accidental murders can only be forgiven once that pardon is confirmed by the state through its judicial system. A crime against a person carries with it the necessary duality of it also being a crime against the social fabric. Where any pardon is being extended by the victim’s families, it is up to the court to confirm it in light of the effect it would have upon society as a whole.

Causing disorder or damage to the fabric of the state, or the peace that exists within it, has no nexus with the victim’s family and cannot hence be forgiven by them. Hence, even in Pakistan where accidental murders can be pardoned, the family pardon removes only the sanction of death for the murder; it does not remove the independent sanction of causing damage to the fabric of the state.

The separate crime of disrupting peace upon the land is included in our code as fisad fil ard and continues to apply. You don’t just step away from a murder. Unless you’re very rich and prefer to murder in Pakistan, where the police and prosecution can ensure that the charge is crafted in a way that when it falls through, it goes away completely.

Layering up the law

Money or subtle coercion can now absolve you of murder in Pakistan after the Supreme Court is responded to by the state’s legislation of criminal law amendments.

Trouble starts to surface when a spate of sectarian violence grips the country in the late 1990s, and ethnic strife hits Karachi. Instead of learning its lesson and amending the law to make deliberate murder unpardonable, the Pakistani state instead decides to take the easier route — of exception.

It decides that these murders must not be forgivable, the ones that the state decides involve terrorism. So we pass another layer of legislation that focuses on the ‘heinous’ crimes of terrorism, make special courts to ‘expeditiously’ try these crimes, and make the offences of terrorism unforgivable by victims, and a matter between the state and the accused.

Like all crime should be, and has evolved to become around the modern world.

Terrorism is defined by our croissant-making legislature as taking a variety of violent action where “the use or threat [of a violent action] is designed to coerce and intimidate or overawe the government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or the use of threat is made for the purpose of advancing a religious, sectarian or ethnic cause.

The first solution of murder becoming pardonable due to the so-called religious readings of inexpert judges leads to terrorists coercing pardons. The second solution is found in the terrorism legislation.

This leads to the third problem — what about when the really rich and powerful commit heinous crimes?

The answer found for this one is by far the most haphazard — the system decides to tackle this challenge by marking everything heinous enough as terrorism. Then jurisprudence evolves where the understanding of the intent to intimidate the public at large is read into acts that are deemed to be belligerent enough.

Which is what happened with Shahrukh Jatoi, where terrorism was implied by not one but two Supreme Court chief Justices — Iftikhar Chaudhry in 2013 and then Saqib Nisar in 2018.

The royal treatment

The best cinemas in Dubai have luxurious seating as standard. Then there are the higher rows, followed by the far more expensive VIP suites. Right up next to the projector lens is the royal box, for which tickets are not for sale.

Pakistan’s criminal justice system has similar, albeit less luxuriant tiers.

Initially when arrested, if you have money and can exhibit an education, you get better class jail facilities — which generally means you have to share a hole in the ground that serves as a toilet with a dozen people instead of 50.

Also, if you cough up extra cash, someone from regular jail comes to clean it and wash your clothes sometimes. Then once the investigation is completed, money gets you bail while the poor can’t make bond. Once it comes to trial, you can get a good lawyer; the poor get representation that sometimes warrants a true crime series of its own.

But the royal box treatment is when you can pay off the family. You must have enough influence to count as a Pakistani royal. The police must set up the case and frame the charge in a way that it is pardonable. The state must ensure the pace of progress is glacial. The prosecutor’s team must be in sync with your plans. Sometimes, a judge must be made to understand the ways of the wink and the nod. If you tick all these boxes, you may realise the one true difference between the Emirati cinema and Pakistani justice — that here, access to the royal box is for sale.

Every family starts with wanting justice. A few months of offers of carrots and threats of sticks later, with a compliant state apparatus behind them, the accused end up getting pardoned ‘in the greater interests of justice’. Often, the greater interests of justice make the family members suddenly, inexplicably and at times grotesquely, rich.

There is a recent Netflix series about Jeffrey Dahmer, the cannibal serial killer of homosexual victims who largely belonged to minority races. According to his own testimony, Dahmer didn’t mean to murder his victims and would do so only out of rage and shame felt in the moment.

On current form, if Dahmer had been important enough in Pakistan, and rich enough to purchase pardons from the victims, his only real worry would be that he was a homosexual cannibal. If he got a good enough lawyer who was able to discredit the cannibalism and paint him as someone who hunted homosexuals only to proselytise to them, Dahmer’s trial could have even ended very differently in Pakistan.

Justice delayed, and ultimately denied

A chief justice’s intervention, a reversal of judgment and a retrial is usually enough to dampen the effects of the deepest of pockets.

But this was Shahrukh Jatoi. This was the royal box. And after everyone was paid and all pardons were recorded, all that remained was getting a really good lawyer who could show that the chief justice was wrong when he called this terrorism, and that the incident involved only a murder without any intent to terrorise society.

And because we made a croissant of the law, layering it when we should have simplified it, and because this incident just doesn’t fit into the definition of terrorism, it’s over, and Jatoi is free. For being jailed for the wrong crime, by the wrong court, because he was able to buy himself out of the effect of his actual crimes.

When you create exceptional laws for hard cases, you make bad law. It is a mediocre effort of a lazy state. Like a bad movie by a spent director. And when you try to screen a bad movie in the cinema, those in the royal box walk out whenever they want.

The author is a lawyer and political analyst, in which capacity he regularly appears on TV shows and has written for various publications such as Dawn, The News andThe Friday Times.

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