The core purpose of the law must align with human rights. Flaws and loopholes in statutory language serve as gateways for exploiting rights and perpetuating injustice in society. It is not surprising, therefore, that a distinction exists between law and justice. The relationship between the two is akin to Newton’s third law of motion: “For every action, there is an equal and opposite reaction.” When the rule of law is upheld, justice is timely and not denied; conversely, where lawlessness prevails, injustice reigns. When the law fails to safeguard an individual’s rightful interests, the very purpose for which it was established is undermined, leading to a miscarriage of justice. According to Black’s Law Dictionary, “A decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantial rights of any party is a miscarriage of justice.”

Among the many stumbling blocks to the application of justice, exceptions in law stand out. Clause 39 of the Magna Carta provides that “No freemen shall be taken or imprisoned or disseized or exiled or in any way destroyed, except by the lawful judgment of law of the land.” While this clause ostensibly protects individual rights, its exceptions paint a different picture, as we see today. Urban development and housing schemes, authorised and regularised by the law of the land, are unfortunately dispossessing indigenous people. The same law, designed to protect the fundamental rights of all individuals, turns a blind eye to the plight of many to safeguard the interests of a few. Thus, the legitimacy of the law is often called into question.

George Orwell’s *Animal Farm* is a masterpiece that brilliantly illustrates the manipulation and exploitation of rights. In the story, the pigs establish seven commandments of animalism based on Old Major’s speech. These commandments are inscribed on the wall of the farm’s building. The sixth commandment decrees, “No animal shall kill any other animal.” However, as the number of killings on the farm increases, concerns arise among the animals. Some recall the sixth commandment, but the intelligent pig Napoleon amends it by adding two words: “No animal shall kill any other animal without cause.” This amendment grants Napoleon a free hand to kill more animals. The addition of an exception in the law effectively legalises Napoleon’s barbarities.

Similarly, fake encounters by law enforcement agencies are a common practice in India and Pakistan. Both countries share the same statutory and procedural law within their criminal justice systems. Section 46 of The Criminal Procedure Code 1898, titled ‘Arrest: How Made,’ outlines the process. Subsection (1) provides that “In making an arrest, the police officer or other person making the arrest shall actually touch or confine the body of the person to be arrested unless there is submission to custody by word or action.” Subsection (2) states that if a person forcibly resists arrest or attempts to evade it, the officer may use all necessary means to effect the arrest. Subsection (3), which addresses the rights of the accused, states that “Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.” This raises the question: what if the person is accused of an offence punishable by death or life imprisonment? Is the state machinery authorised to cause the death of such a person before the accusation is even tried in a court of law? It is crucial to consider whether such provisions reflect the true intention of the law, which is to protect individuals from harm to their mind, body, or property and to provide remedies where needed.

In December 2023, during the hearing of an appeal against the acquittal of an accused person in a murder case, the Honorable Supreme Court of Pakistan interpreted the legal maxim “the accused is the favourite child of the law.” The Apex Court held that “The substratum of this concept is based on farsightedness and prudence; there is a need to assess and scrutinise whether the police and prosecution have performed their tasks accurately and diligently to apprehend and expose the actual culprits.” The Court also echoed Benjamin Franklin’s famous saying: “Let a hundred guilty be acquitted, but not one innocent should be convicted.”

The safeguarding of convicted persons’ rights must be ensured. The law has established procedures that must be followed to guarantee a fair trial according to due process. Compliance with these procedures ensures that no person, whether innocent or accused, has their rights trampled upon. A fair trial lays the groundwork for a thorough process, reducing the chances of wrongful conviction and increasing the likelihood of punishing the guilty. However, the rule of law must always remain paramount. Whether innocent or guilty, no one should be treated in a manner that does not correspond with the law.

Muhammed Abid
The writer is an advocate at the Sindh High Court.