The Cost Of Injustice: Reforming Pakistan's Bail And Pre-Trial Practices In The Context of Legal Fidelity and Moral Imperatives In Law

The world as it has evolved has placed a great imperativeness on upholding the right to liberty of individuals, which is evident from its universal recognition, but this inherent right is fundamentally curtailed by pre- trial detention. The presumption of innocence being a grundnorm, as Kelson terms it, of the modern criminal justice system, yet pre-trial detention seems to be a widespread practice. This research paper investigates the doctrine of bail in Pakistan, contrasting it with the practice of pre-trial detention, and further emphasises a need for change in the bail system, suggesting a reform and alternatives to pre-trial detention. A further emphasis is placed upon the fact that usurpation of liberty under the guise of “save in accordance with law” has not only individual consequences but rattles the society at large to its core. A failure to accord its nationals from a legal usurpation of rights leaves the sovereign with distrust, ultimately leading to a general lack of legitimacy for the sovereign itself. A Law which is in practice, morally reprehensible and has displayed failure on its accord, must be amended. Further discussion revolves around the fundamental errors in the old system, failure of implementation and a change of the system as is in context of Hart and Fuller’s Debate on application of morality and fidelity in law.