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January 13, 2020

The right kind of reforms


January 13, 2020

A huge backlog in the Supreme Court, high courts and lower courts, delay in conclusion of cases, heavy expenditure on litigation and more than 70 percent acquittal in criminal cases: all this calls for reforms in the judicial system.

The movers and shakers of the system found that the key to the problems were in the speedy trials of civil and criminal cases. This would have helped reform the system had delay alone been the cause of this phenomenon. Assuming that it is a cause, the question would be what it is due to.

Some attribute the delay in conclusion of trial in civil and criminal cases to procedural barriers and bottlenecks. Some accuse the lawyers and litigants for the mess. Some apportion blame on the judges by holding that judges in the lower and superior courts lack will and wisdom to decide the cases before them in a just, fair and equitable manner. Some pin responsibility on the legislature by saying that procedural and substantive laws have become obsolete and have neither been amended nor updated through proper legislation.

All of the critique has an element of truth – but it is not the whole of it. The problem at no level is one-dimensional. It is essentially multidimensional because of diverse reasons. No person instituting a suit in a civil case or lodging a complaint in a criminal case presents things as they originated, grew and reached the court. They, at the very outset, mould and modify the truth in the form required by the procedural and substantive laws.

What is the truth and what actually happened remain shrouded in mystery and never see light of day. Those who are clever bear away the palm at the end of the day. Things go worse when the lodger of the FIR is asked to give a distorted version of the facts at the cost of the truth to ensure its conformity with (wrong) notions which have been in vogue for centuries.

Whatever is reported or written becomes a basis for the investigation of the case. Whether the person reporting the incident himself/herself witnessed the occurrence or their narrative is based on hearsay; who has actually witnessed the incident and why they withhold their account; why doesn’t the investigating agency investigate the case on the correct lines; what happens to investigations of this nature at the end – these are questions which have never been addressed holistically.

Speedy trials, trials by military courts or trials by Anti-terrorism Courts are considered a remedy of the problems without considering the quality of evidence, standard of investigation and fairness of the prosecution and the justness of the decision. Yes, speedy trials bring an end to the agonies of the parties but retribution for the oppressor and redressal for the oppressed in any case remain an unachievable goal.

It is all the more unachievable when litigation in any form has become a luxury which is well beyond the reach of poor people. Effrontery to speak the truth, honesty and expertise to investigate the crime reported, audacity to apprehend the person behind the crime, interrogate them and bring the truth to light, and the ability to prosecute the person accused of committing a crime, as well as the legal acumen of the judge adjudging the guilt or innocence of the person accused cannot be taken for granted.

The inefficiency and amenability of the police to local influence apart, lack of honesty and seriousness of purpose are other impediments in fair investigation of a case. Where police officers at the lower and higher levels are posted and transferred on the biddings of wealthy locals and politicians, it would be rather stupid to expect such officers to perform their duties or conduct investigations of criminal cases in a just and honest frame of mind.

The fact is that the police are used as an engine for oppressing dissidents and suppressing the discordant voice tending or threatening to question the interest of the elites who consider themselves unquestionable lords of their respective areas.

There are other reasons which seriously affect the fair investigation of a case. The incompetence of the investigating agency for want of special expertise, special training and latest scientific equipment facilitating the investigation and detection of crime is the main among them. But, surprisingly enough no effort much less concerted has ever been made to bring about improvement in this field.

Advancement in the outfits of crime called for advancement in the methods of investigation as well as medical and criminal jurisprudence – but even in these fields we could not make any advancement. Our methods of investigation and our medical as well as criminal jurisprudence are as old as the 40s and 50s of the 20th century. No conscious and concerted effort has been made to update investigation as well as medical and criminal jurisprudence. Even today our jurists don’t realize that we are to go far ahead of criminals to forestall and detect the commission of crime.

With an outdated system and outdated equipment of investigation, it would not be possible to cope with the crime and the person behind it. Why don’t people come forth to depose in the courts despite having witnessed an incident? The answer is: fear of consequences flowing from deposing against criminals. Such consequences become graver when no system to ensure their security is in place. Criminals who are likely to be affected by such testimony can harm and even do away with the witnesses with impunity.

In the UK, many effective measures were taken to deal with a situation of this type. Anonymity of witnesses to guard against any harm which could possibly be inflicted on them by criminals was one of them. In certain cases, the witnesses were shifted to an unknown place to protect them from any revengeful or retaliating acts. On paper, we have considered the concept of anonymity of witnesses and even their security, but practically both of them are nonexistent in our country. Where witnesses live in a state of perpetual insecurity, why should they depose against a criminal and expose themselves and their families to the risk of being harmed or eliminated?

We need something more than speedy trials and quick disposal of criminal cases within weeks or months. Disposal of criminal cases within such time would be desirable where effrontery to speak the truth, honesty and expertise to investigate the crime reported; audacity to apprehend the person behind the crime, interrogate them and bring the truth to light; ability to prosecute fairly, and the legal acumen of the judge adjudging the guilt or innocence justly are not exceptions but the order of the day.

Where such attributes in the witness, investigating agency, prosecutor and judge are conspicuous by their absence, conclusion of a trial in shorter span of time, ending in unwarranted convictions or acquittals, would not bear any fruit. It would rather encourage the victims of such hurried and half-baked justice to take law in their own hands. Let us open our eyes and take stock of the situation to figure out the remedy – treating the disease at the root.

The writer is a former judge of the Supreme Court of Pakistan.

To be continued