MISCARRIAGE OF JUSTICE IN PAKISTAN: LEGAL FRAMEWORK REDRESSING VIOLATIONS OF THE ACCUSED’S FUNDAMENTAL RIGHTS

Abstract

The legal regime in Pakistan guarantees to protect the fundamental rights of accused in the administration of the criminal justice system. However, the rights are not effectively enforced due to various reasons. Instead, the fundamental rights of accused are violated in terms of wrongful detention, custodial torture, enforced disappearance, malicious prosecution, prolonged pre-trial detention without proof of the guilt and wrongful conviction resulting into miscarriage of justice.

On the other hand, the legal framework does not provide the right to redress explicitly or adequately when these rights are violated by state functionaries. Hence, the existing remedies are either inadequate or ineffective due to immunity clauses or lack of a proper legal framework. Additionally, the courts' practice under Article 199 of the Constitution has been inconsistent and uncertain on this aspect. Resultantly, miscarriage of justice occurs in Pakistan without accountability and the civil liability of the state functionaries has not yet been adequately fixed or determined.

This article attempts to analyze the legal framework relating to civil liability of the state authorities to hold the perpetrators accountable for human rights violations. It looks into various forms of civil remedy and highlights the deficiencies in the legal framework. It delves into the role of the legislature to enact the law in the light of both international best practices and the country's unique socio-economic conditions. The study suggests that the proposed legal framework should be based on the strict liability principle to ensure the effective vindication of the fundamental rights of accused and provide them civil redress. The quantum and mode of redress should reflect principles of justice and fairness, incorporating both monetary and non-monetary redress.