- Search and seizure laws must not be misused
A young girl, then aged 12 years and a student at a local school, had just finished dinner with her family on a hot and humid August night in 2016. Her aunts, cousins, sister and mother were still having dinner in the courtyard of their home in District Faisalabad. It was an all female gathering with no male family member present. All of a sudden, a large number of male policemen in uniform climbed through the outer walls of the house and trespassed into the house. They were armed with weapons and sticks. As soon as they entered they fired in the air and started beating all of them with sticks. A policeman who was carrying a torch shown light on the little girl’s face and slapped her and pushed her on the ground. During this ordeal the police kept asking them about the whereabouts of the males of the family. As there was no male present in the house at that time, they gathered all household effects and burned them in the courtyard of the house. Not satisfied with this brutality, the policemen dragged all eight of them out of the house and stuffed them like goats in the police van.
Outside the house, neighbors stood by and watched without anyone daring to intervene to stop the police from beating and dragging them. They were taken to a police station and locked up. She was lucky to have been produced before a judicial officer the next day and was released on bail. The other women were not so lucky and stayed in the lock up for one more day before bail could be granted. Until today, the little girl cannot sleep at night and suffers from the lasting trauma of that fateful night. The neighbors still shun the family and look at them as if they were criminals, such is the social stigma attached to the police entering your house and dragging you out to lock you up in a police station. Her crime: born in poverty in rural Pakistan.
In addition to the Constitutional protection provided in Pakistan not only to the sanctity of home but also against torture for the purpose of extracting evidence, Pakistan is a signatory to The Convention Against and Other Cruel, Inhuman or Degrading Treatment or Punishment and also to the International Covenant on Civil and Political Rights.
This is not an isolated incident. While volunteering for a few months in 2018 with Justice Project Pakistan (JPP), a non-profit human rights law firm established in 2009 in Lahore, I came across some 1867 cases of torture and destruction of rights by police in Faisalabad district alone. Although most victims were men, police did not spare women and even children. Many of the police atrocities have been documented in reports prepared by students of The Allard K. Lowenstein International Human Rights Clinic at Yale Law School and JPP, published in June 2014.
While going through those cases, especially where the police entered homes without search warrants and violated the basic principles enshrined in our own Constitution (Article 14) and the Criminal Procedure Code, I was stunned again and again. Whatever happened to the higher ideal taught by my law professors quoting William Pitt “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—it’s roof may shake—the wind may blow through it—the storm may enter—the rain may enter–but the king of England cannot enter.”
From the above English tradition expressed in 1763 there is a special appreciation for the sanctity of home. It is common to hear the phrase “a man’s house is his castle.” And it is not possible for police under the English law to search a house without a warrant of search issued by a judicial magistrate. The reason to take away the discretionary power of the police to enter premises to search or seize is to create checks and balances. Lord Mansfield in Money v. Leach describes this principle “It is not fit, that the necessary or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer.”
The colonists, thus, inherited the principle of the sanctity of the home from the English. Both in the United States (Fourth Amendment) and in Pakistan (privacy of home, Article 14 of the Constitution) a warrant is also seen as a protection against governmental invasion of privacy. In the United States the applicability of the Fourth Amendment was initially governed by property concepts and considered as a trespass. But as the jurisprudence on the Fourth Amendment developed the property law concepts turned into invasion of privacy. In fact, the first ten amendments to the United States’ Constitution, also known as the Bill of Rights were primarily enacted to protect individuals from the Government. The Fifth Amendment Self- Incrimination Clause guarantees that no person shall be compelled by the government in any criminal case to be a witness against himself. The case Miranda v. Arizona (U.S.1966) guarantees that defendants in police custody must be informed of the following:
- The right to remain silent;
- The right to an attorney and to have the attorney present during questioning;
- The right to court-appointed counsel if he is indigent; and
- That anything the defendants say can or will be used against them in court.
Cases are routinely thrown out by the courts where these minimum standards are not applied. And this is in a country where literacy is not an issue. Still the laws ensure their rights to such an extent. This is something we really need in Pakistan where literacy is low to dismal, understanding of the law and individual’s rights under the constitution is almost zero, police is still living in the last century, and the quality of lawyers available to the defendants in rural Pakistan is abysmally low.
In addition to the Constitutional protection provided in Pakistan not only to the sanctity of home but also against torture for the purpose of extracting evidence, Pakistan is a signatory to The Convention Against and Other Cruel, Inhuman or Degrading Treatment or Punishment and also to the International Covenant on Civil and Political Rights. These treaties require Pakistan to act affirmatively to prevent torture and punish perpetrators. How could then the judges before whom such hapless victims were produced not question the police about the place of the arrest? How could they overlook the torture meted out to the victims? How could they not get to the bottom of the truth by asking some fundamental questions both to the police and the victims of this highhandedness? And how could they not defend their fundamental right to freedom as stated in the Constitution? What action, if any, did they take against such rogue police officers?
The Supreme Court has been taking concrete steps to bring justice to people by introducing speedy trials, declining adjournments to even the most senior lawyers, training of judges and police officials, establishing e-courts, introducing Artificial Intelligence-supported data base, and warning “All those who have given false testimonies, beware.” In addition, we should also look at some compensation for people who have been incarcerated for years in prisons because of false testimonies and incompetence of the criminal justice system resulting in wrongful convictions, especially murder convictions. In California, early last year, Simi Valley reached a 21 million USD settlement with Craig Coley who spent more than 38 years wrongfully in jail for the 1978 murders of a woman and her four years old son.
The Supreme Court’s journey towards truth coincides with the journey of this little girl towards justice. They are on the same train. The lower judiciary while issuing search and seizure warrants must make sure that the warrant is really needed and must deeply look at the reputation and intentions of the officer asking for a warrant. Whether the purpose for the warrant is specific enough. And when the prisoners are produced before him/her, right questions are asked to ascertain the exact location from where they have been arrested. If the arresting officer is found to be at fault, departmental action is recommended against him. That, the lower judiciary is not deviating from the higher ideal of the superior judiciary and that it is also on the same train.