Explainer: Why IHC declared Lakhvi's detention illegal

The fault lies with the government and law enforcement agencies, not the courts

The frequent release of alleged high-profile terrorists causes much frustration over the condition of our judicial system.  People rightly question the courts judgment in letting loose such obviously dangerous persons back into society. The Islamabad High Court's order today for the release of Zakiur Rehman Lakhvi - the alleged mastermind of the 2008 Mumbai attacks - is only the most recent case to arouse controversy.

Read: Mumbai attacks 'mastermind': IHC declares Lakhvi's detention illegal

In these instances, civil society tends to blame the judicial system. However, such beliefs are, in fact, great misconceptions that deserve clarification, particularly in order to restore diminishing faith in our judicial system.

I have been a practicing lawyer for many years and can readily tell you that the courts are part of a judicial system which is constitutionally created and mandated. This means nothing more than the fact that the establishment, powers and governance of the courts are decided by law through acts of Parliament. Such law is passed by the Parliamentarians and not by Judicial Officers or lawyers. It is, in fact, the government which has the power to try and ensure convictions, and let me explain how:

The criminal justice department comes under direct control of the Interior Ministry, for which the relevant minister is directly responsible.  The criminal justice department consists of the police forces, F.I.A., N.A.B., Anti-terrorism Force, and all other law enforcement agencies who are responsible for investigating and arresting the relevant perpetrators. It is precisely through their resources and intelligence mechanisms that they must identify culprits, investigate them, and, if need arises, arrest them. They decide if charges are to be filed in Court and if so they submit charges along with all evidence.

Lay persons must realize that the Court is nothing more than a creature of statute or law and can only look at what evidence is placed before it. If the evidence is insufficient the courts cannot convict the accused regardless of what the court's own view on the matter may be.

It is that simple. In western countries which have jury trials there have been instances where Judges have criticized juries for passing an acquittal verdict, but the Court will have no choice but to follow the juries decision as that is what they are mandated to do. The Court has perhaps the toughest job of all, measuring personal liberty versus the (often shabby) evidence placed before them and reaching a fair and legal decision without allowing their personal or public sentiment to affect their judgement.  It is much easier sitting on the outside and looking in.

In Pakistan acquittals (particularly of persons generally believed to be guilty) are based on the fact that the investigating agencies have failed in performing their duties. Be it due to any reason whatsoever such as negligence, pressure, political influence or failing to protect pertinent witnesses, such blame solely lies with the government and the concerned agencies failure in producing sufficient evidence.

The solution to this predicament is to strengthen our criminal justice department through imposing proper checks and balances ensuring diligent and proper investigations, and getting Parliamentarians to provide supporting laws and guaranteeing enforcement and accountability of implementation of such laws. Only then will we be able to see successful convictions and have dangerous individuals kept behind bars where they belong.