Terror, crime and the tardy justice system
By Imtiaz Gul
Express Tribune, July 02, 2014
A big question hangs around the perceived impact of the Protection of Pakistan Ordinance (PPO) 2014. Will it make Pakistan safer and accelerate the disposal of cases at various courts? A massive pendency of more than 2.5 million in lower and higher courts across Pakistan, including several thousand cases with the 55 anti-terrorism courts, hardly evokes a positive response; the law may empower the law enforcers with a licence to kill (as part of the counterterrorism struggle), but it is certainly not likely to change the fundamentals of the justice system because of a crippling judicial paralysis. It stems from a partially dysfunctional judicial system, which is overstretched, corrupt, outdated, and practically unable to prosecute even those with incriminating evidence against them.
As of May 2014, magisterial and sessions courts in Punjab, for instance, reeled from having to deal with over 400,000 pending cases. Similarly, as of December 2013, 36 district courts in Punjab had a staggering 545,438 cases pending.
Similarly, the ‘booty’ of the Karachi Operation is at least 5,000 alleged terrorists and criminals. Most of them were supposed to be tried by four ATC courts (meant for Karachi). And this represents a logistic capacity challenge. An ATC judge would have to handle at least 36 cases a day and every single information officer had to process at least 80 cases within 90 days of the prescribed detention period — from investigation to the preparation of the challan and its submission before the ATC. Impossible.
This leads us to the simple conclusion that the burden outweighs the capacity to investigate and prosecute. This invariably results in judicial paralysis. Battles won in the field are lost in the courts simply because of an antiquated criminal justice system, i.e., the Criminal Procedure Code (CrPC). The CrPC rests on the FIR, which can take one to the gallows or land one in jail for years, regardless of the veracity of such a report in a society where financial temptations of police officials can compromise the process.
This requires changes to fit the new pressing circumstances. Most legal experts demand procedural changes to the CrPC, beginning with the registration stage of the FIR to the prosecution department, which must be vested with investigations that can lead to an arrest. Experts also quote the example of Turkey, where the initial report is considered an FIR — and hence a foundation for the ensuing investigation. In Germany too, the prosecution leads the investigation before recommending arrests in a particular case. Similarly, arrests must be made conditional to the completion of the investigation as well as permission by the prosecutor’s office. This would also make the usual compulsion of bail-before-arrest redundant.
The CrPC also needs comprehensive revision to make space for forensics, such as DNA testingand physical evidence, as the primary element of evidence. Issues such as crime scene preservation, treating physical evidence as the core component of the investigation, and appointing legal experts as investigation officers instead of poorly trained, corrupt and illiterate police officers requires attention as well.
Police officials often wilfully lodge a complaint (on the insistence of a purported aggrieved person) with all possible CrPC clauses and legal terminology to make it difficult for the defendant. They also, say state prosecutors, include several names in the FIR to stagger the charge.
“They do it the way businessmen stagger their investments to ensure profits and avoid risks,” said a prosecutor.
A wealth of knowledge acquired through field research and interaction with key stakeholders suggests that without a comprehensive revamp of the CrPC, the criminal justice system will remain hostage to a corrupt police and judicial system. Most experts and civil society stakeholders demand immediate changes to the CrPC and one would have to agree with this. They also demand uniform laws governing the police in the country. Unless the police is freed of political interference and until it can function as a merit-based independent institution, the public will remain sceptical and wary of it. Who will bell the cat, is the major question.
Imtiaz Gul is the executive director of the independent Centre for Research and Security Studies