Bail as of right – I.A. Rehman


THE only fundamental right granted to Pakistani citizens in absolute terms is the inviolable right to dignity of person: Article 14 A of the Constitution. And this is the right that is perhaps most widely violated.

It is denied at home, at school, at workplaces, at police stations, at prisons, and inside courtrooms. It is violated each time a person is handcuffed on arrest — the latter can be effected by a policeman putting his hand on the shoulder of the man wanted for an offence and telling him that he is under arrest. And it is violated each time an accused, who must be presumed innocent until found guilty after a fair trial, is denied bail. As a result of denial of bail, most of the country’s prisons have more prisoners than their capacity.

Out of the total prison population of 85,000 plus, only one-fourth to one-third are convicts, the rest are undertrials, most of whom could have been released on bail. Denial of bail means that many of the prisoners suffer imprisonment for longer periods than the maximum prison term prescribed for their crimes.

Apart from violation of an inviolable right, a detainee is also deprived of his right to liberty. The seriousness of punishment before conviction caused by the denial of liberty has been discussed at length by the Honourable Justice Maqbool Baqar of the Supreme Court in a landmark judgement (Saad Rafiq and Salman Rafiq vs the NAB.)

Justice Maqbool Baqar observes: “While dealing with the question of whether or not bail is to be granted to an accused, it has to be kept in mind that the object of bail is to ensure the attendance of the accused at the trial. The object is neither punitive nor preventive. Imprisonment of a person and deprivation of liberty cannot be described other than punishment, unless no less restrictive alternative is available to ensure that the accused will stand his trial when called upon to do so.”

The nature and size of punishment caused by denial of bail can be gauged from the case of the Jang-Geo chief, Mir Shakilur Rahman. He was denied bail when the Lahore Development Authority was still collecting evidence implicating him. Obviously, NAB had ordered his arrest without any evidence against him and denial of bail to him was a favour to NAB that it did not deserve. This case is likely to haunt the judiciary for a long time.

The restrictive policy about bail has been sustained by the state’s growing obsession with detaining the suspect/accused for a long period without producing him in court. The law made by the colonial rulers required a detainee to be produced before a magistrate within 24 hours of arrest. In independent Pakistan, a law called Protection of Pakistan Act allowed a suspect/accused to be held for 90 days without being produced in court. Under this wonderful system a person could be detained indefinitely by charging him with a new offence before the term of detention for 90 days on an earlier charge ended. That law lapsed but the government is still pursuing the idea of getting legal cover for 90 days’ detention without reference to the court.

This situation is the result of persisting with a retributive system of justice, which denies the value of human life. The accused are sentenced to harsh, often inhuman, punishment, and whatever inherent goodness they possess is stifled. Only a few can regain sanity, while most convicts are lost to society. An extreme example of the meaninglessness of the retributive system of justice is its provision for capital punishment.

Hanging a man is no punishment for him. After death he won’t even be conscious of loss of life. A more rational solution would be to allow him catharsis and try to become a useful member of society. But we in Pakistan have regressed further from retributive justice; our system has become vindictive.

Let us see how the world has liberalised the grant of bail. The people’s appeal to King John that resulted in the signing of the Magna Carta included a demand that the bail bond should not be fixed too high to be afforded by people of limited means. The struggle for easy bail continued in England and the United States. Eventually, the Eighth Amendment to the US constitution gave anybody charged with a criminal offence the constitutional right to be released on bail, unless there was good reason to keep the accused in prison. Canada, Australia and New Zealand are prominent among the countries that have followed the US example.

In view of the foregoing discussion, two changes in the justice system need to be given priority. Firstly, the policy of denying bail unless there are compelling reasons to allow it must be replaced with a principle about allowing bail as a right unless there are compelling reasons for keeping the suspect/accused in prison.

Secondly, a movement towards reformative justice should be launched forthwith. The objective of criminal laws must be redefined in humanitarian terms. First-time offenders must have options other than becoming hardened criminals. The overall goal of the criminal justice system ought to be transformation of the wrongdoers into responsible citizens and preservation of their inherent goodness.

It might be argued that the law and order situation in Pakistan does not permit the luxury of treating criminals, especially the hardened ones, leniently. Terrorists, rebels and others guilty of heinous crimes may continue to be treated harshly, though even in such cases the existence of fair laws, a tradition of fair trial, and absence of discrimination will have good results. For the general body of criminals the object of punishment must be reform and reclamation of the criminal. It is also necessary to remember that cruel, inhuman and degrading punishment has not ended crime anywhere. Crime has everywhere been controlled by the spread of education, social change and increasing citizens’ access to jobs and necessities of life, to secure which crime is often committed.