‘Guilty unless proven innocent’ is the negation of established canons of

criminal justice.

History always repeats itself and indeed, it is repeating itself now. Each time we are faced with the same futile exercise and after its reversal the nation is caught up in a quagmire. The essence of wisdom lies not in repeating botched ventures of the past at the expense of constitutional supremacy.

It was 1992 in the first reign of the caliph of South Asian dominion, and the urgency was the eradication of rape and armed robberies. The government came up with the Speedy Trials Act and the consequent treatment meted out was horrendous. Punishment in the form of firing squads was introduced, thus leaving no choice for the August Court than to assert itself and declare it an abrogation.

In 1997, Sharif’s government introduced an even stricter Anti-terrorism Act (ATA) to “cope” with the law and order situation. While introducing new crimes, the law encroached on fundamental rights; no provisions for appeal in the higher courts and prolonged detentions. The result was not contrary to expectations - it simply failed to yield anything. Neither sectarian violence nor terrorism was diffused in the wake of the special law. Rather it raised tough questions on harsh provisions, making the Supreme Court strike out all clauses and directing government to make necessary amendments in Mehram Ali’s Case.

Musharraf’s National Accountability Ordinance (NAO) 1999 was no different. Both legal regimes were aimed at suppressing the fundamental rights of citizens. NAO eliminated the concept of bail and called for the closure of investigations at the discretion of the executive. Again, the result was nullity. The Supreme Court in Asfandyar Wali’s case struck all the provisions contrary to constitutional nomenclature.

Today, once again the government’s belligerence and subjugation of fundamental freedoms continues. This time it is far worse than in the past and in the guise of the Protection of Pakistan Ordinance. The spectre of national security still haunts our established civic values. The constitutionality of our criminal justice processes is based on the adversarial system incorporated from common law, and all the criminal justice systems of the world work on its premise, where the prosecution has to establish the guilt of the defendant. The defendant can only be punished once their guilt has been established beyond a shadow of reasonable doubt. The jurisprudence developed and interpreted by the Supreme Court unequivocally delineates the supremacy of constitutional guarantees of liberty, inviolability and dignity of man over any other special law, irrespective of its importance and urgency. Every law not based in wisdom is a menace to the state and the Protection of Pakistan Ordinance would rightly be labeled as the Protection from Dissent Ordinance. Any reasonable mind can predict the fate of this draconian instrument. Its repugnance should make the Supreme Court call it a nullity.

This modern day episode of would-be abortion is strikingly similar as that of the Rowlatt Act (Defence of India Regulations Act) passed in 1919 as “emergency measures” during the First World War in order to control public unrest and root out conspiracy in colonial India. That Act effectively authorized the government to imprison up to two years, without trial, any person suspected of terrorism living in the Raj and gave the imperial authorities power to deal with revolutionary activities. The unpopular legislation provided for stricter control of the press, arrests without warrant, and indefinite detention without trial. The accused was denied the right to know the accusers and the evidence used in the trial. The consequences were too visible to notice.

The present government needs to look back because that’s where all the lessons lie. There was nothing wrong with the British, which ruled India for over a hundred years. The only conflict between them and us was intimately connected with the values of our freedom, thereby forcing the British to leave. A good government operates with the realization that people with a sense of freedom are more responsible every time, than the people who live under the constraints of fear and the loss of their most fundamental freedoms.

The sordid disregard for human values and the insatiable struggle for over criminalization have dauntingly failed authoritarian regimes and theocratic structures. History shows that when societies trade human rights for security, most often they get neither. Instead, minorities and other marginalized groups pay the price through the violation of their dignity and human rights.

 The writer is a lawyer and works at  Justice Project Pakistan.