Due process is a fundamental human right, enshrined in international human rights treaties as well as Pakistan’s Constitution. It is a check on the power of the state to deprive persons of life and liberty. It is a right guaranteed to all – even those who have committed abominable crimes. In the context of criminal trials, due process requires at a minimum the right to a hearing, notice of all charges, opportunity to challenge incriminating evidence and to competent and independent legal representation.
Does the trial of Zahir Jaffer, his parents and other alleged accomplices raise due process concerns? There is a view that it does not because Zahir Jaffer and his parents are wealthy and well-connected. Typically, those belonging to this class in Pakistan do not face risks of arbitrary and heavy-handed power of the state. Due process is a concern for the poor and marginalised -- the argument goes -- not for the elite who often buy their way out of justice.
But due process here is a very real concern because of how this case is covered in the media and the public outrage it has generated. The sensational coverage and overwhelming condemnation could well influence the judge who will hear the case. There is a reasonable fear that a judge will be swayed by media reports and public sentiments rather than the evidence before them. Therefore, it is essential that procedural safeguards be in place.
We must also remind ourselves that gender justice will not be attained by convictions in one case. Gender justice requires systemic reforms. We will let state and society off the hook if we focus on outcomes in this case rather than failures in the system.
Any attempt to shame or blame Noor Mukaddam is inexcusable and reprehensible. Her 'character' must not be put on trial and it has no relevance to whether or not Zahir Jaffer and various accomplices are to be found guilty. The defendants in this case are, however, entitled to put forward a defense, challenge the evidence put forward by the prosecution and to be represented and advised by legal counsel.
It has been pointed out by many concerned citizens and activists, for good reason, that widespread impunity for gender crimes in Pakistan must end. So, the argument goes, anyone who cares for human rights must prioritise a conviction for the perpetrators. Justice demands that they be punished, and this has to be the most important goal here - more important than ensuring due process for the defendants.
One problem with this claim is that due process is too important a principle to be applied selectively. It is a crucial limitation on the power of the state to deprive us of life and liberty. If we allow the state to lapse in one case, we concede too much power and risk freedoms and liberties for all. Due process and accountability can co-exist. Due process helps to ensure that accountability is fair.
We must be sensitive to the risk that the media narrative may control this trial. There is no reason to believe that this is an 'open and shut' case against all those accused. Any lawyer worth their salt will tell you that if you think you have an 'open and shut' case, you can be almost certain you’re missing and overlooking crucial facts and gaps. Due process is meant to "minimise the risk of error inherent in the truthfinding processes" as was held by the US Supreme Court. Before we impose severe punishments on anybody we have to make sure that the risk of error is avoided as much as possible, and this is why we must support competent and independent legal representation for all accused and an adequate opportunity for defense.
We must also remind ourselves that gender justice will not be attained by convictions in one case. Gender justice requires systemic reforms. We will let state and society off the hook if we focus on outcomes in this case rather than failures in the system. If convictions here are attained due to media or public outrage rather than a strong prosecution case that withstood challenges from the defense, they would not promote accountability in hundreds of other gender-based crimes for which there is little to no media or public outrage. If a goal of activism around this case is to prevent and punish crimes against women, the advocacy must be directed towards the prosecution to build the case needed to secure the conviction and to courts to ensure that the trial fulfils all legal and constitutional requirements.