"Raise standards of investigations, prosecutions and court adjudications"

April 8, 2018

Dr. Osama Siddique has worked as a lawyer, academic, legal reform expert and teacher in many countries. He holds a doctorate in law from Harvard and was a Rhodes Scholar at Oxford. He served as the Inaugural Henry J. Steiner Visiting Professor in Human Rights at Harvard Law School and regularly teaches for the Institute for Global Law & Policy (IGLP) at Harvard. He is also the author of an acclaimed critical legal history titled, ‘Pakistan’s Experience with Formal Law: An Alien Justice’ (Cambridge, 2013) and a recent historical novel titled, ‘Snuffing Out the Moon’ (Penguin Random House India, 2017).

The News on Sunday: What are the different issues in the criminal justice system that need to be looked into?

Dr Osama Siddique: I have had the benefit of looking into criminal justice issues for some years now as an academic and policy consultant. More recently I have also had the opportunity to serve as a member of a special committee headed by the law minister with senior representatives from the Police, Prosecution and Home departments and the Advocate General’s office -- with a mandate to progress police reforms. The committee experience provided valuable insights into what is prioritised at the highest policy levels and that it may not always capture the grassroots level problems that directly impact ordinary people.

For instance, much of the debate in the said committee and within the highest police circles (serving as well as retired) is about the Police Order 2002 and its future - focused especially on larger structural reforms in the police and the depoliticisation of high level police decision-making, postings and appointments. This is an undeniably important area but what we are more interested in, and when I say we I mean myself individually as a researcher and a policy person and also the project which I am currently advising in Punjab (Justice Sector Support Programme -- JSSP) is what happens at the police station level where most citizens interact with the police as well as in everyday police functions and processes.

One very fundamental area requiring reform for instance is that of police investigations, in particular the weaknesses of processes, protocols and procedures. We conveniently forget that the Indian police was formed and fashioned for colonial needs, along the lines of the Irish Constabulary. Hence, it was entrusted with tasks such as quelling all kinds of dissent and sedition, controlling crowds, collecting information on civilians, espionage etc. Modern policing is, of course, a lot more citizen-oriented and endeavours to embrace citizen priorities, protect citizen rights, encourage citizen involvement in policing, and employ consistent, human rights compliant and scientific methods for preventing and solving crime.

The inadequacies of our crime solving capacity and methods were recently shown up by the Kasur case and other similar scandals. At the same time, it became evident what process focused and thorough investigations and intelligent use of technology can achieve. The need of the hour is to ensure that all investigations are better funded, better structured, and standardised in line with consistent and high standards. That is what we are currently focused on. Equally importantly, we need more effective safeguards against contamination or loss of evidence and also maximum utilisation of the state of the art Punjab Forensic Science Agency which has so much to offer.

Better evidence collection from the crime scene and other locations, more fool proof evidence preservation, greater reliance on forensic evidence instead of overwhelming emphasis on ocular and circumstantial evidence, closer police and prosecutorial coordination, and a general upgradation of all aspects of investigation processes and protocols will not just improve citizen experience with the police. It will also ensure that far fewer weak cases will actually go to court. In other words, not only will the conviction rate go up but there will also be a much lesser probability of innocent persons getting wrongfully punished.

There is much unfair finger pointing at the police. It cannot be singled out for blame and often operates in trying conditions. The criminal justice system is highly interconnected and the police, prosecution, courts, prisons, probation and parole and forensics are all significant links in the chain. Any meaningful criminal justice reform has to collectively look at all these institutions and enhance their coordination and cooperation. Treating these as silos would be a fatal mistake. We also need to be cognizant of the historical rivalries and tensions between different institutions and service cadres. High time that we moved beyond such parochialism and looked at the larger picture.

TNS: Is there any protocol about crime scene investigations (CSI)? What is the state of affairs as to prosecution and the judiciary?

OS: There are some processes and rules but nothing really comprehensive and airtight and for that matter consistently followed. The interesting point is that unlike many other areas where context and local realities have a bearing CSI best practices are the same whether it is Sweden or Senegal. You lift fingerprints or preserve bloodstains in identical ways. As things stand, we have several major gaps in our rules regime and applicable processes when it comes to identifying, collecting, preserving and transferring evidence. Also important is the determination of what is relevant and what is not. This is an obvious and immediate area for reforms and the police has shown great appetite for the same.

There are various other essential areas, such as the actual process of recording the statement of witnesses and the accused. Much can be improved here to ensure accurate statements, protection of rights of witnesses and the accused, and far less possibility of coercion making the evidence tainted and unreliable. We also need to modify and improve protocols for treating the more vulnerable people in the investigation system. Women, the elderly, the young, the differently abled - it is not just the efficiency and modernity of a system but also its fairness and humanity which builds a people’s trust in it as well as in the state.

Another very important area is the level and extent of the prosecution’s involvement vis-à-vis investigations. The prosecution performs a vital role in not just bringing the guilty to justice but also in protecting the innocent and in keeping frivolous, weak and unmeritorious cases out of the system so that public resources can be spent on the more meritorious ones. Vital work needs to be undertaken towards enhancing and empowering the prosecutorial function without in any way compromising the independence and integrity of police investigations. The Punjab Prosecution Department has made great progress in the last couple of years - it has built internal standards and systems, really improved its trainings, embraced a code of conduct, and streamlined its performance monitoring. This is therefore, an ideal time to build on its momentum and further strengthen it.

Everyone is well aware of the problems of delays in courts as also their tremendous workload. Once again, very useful work has been undertaken in the past two years to closely examine the issues and make recommendations for necessary structural and administrative reforms, adoption of a Caseflow Management system (something that is now being used everywhere from the Philippines to Thailand) to systematically control the progress of cases and shorten their lives, and employing technology in a meaningful way. In many ways, we are still relying on 19th century structures and approaches to investigate, prosecute and convict 21st century criminality. How long can this go on?

TNS: Is the police sufficiently able to collect and use data in investigating a crime?

OS: We’re currently looking at the scope and quality of the data collected and what they do with it. The fundamentally important thing is knowing clearly why the data is being collected in the first place i.e., what are your performance indicators as well as planning needs, and then what to actually do with the data in terms of informing decision-making. The Punjab Police currently collects and monitors many different kinds of data. It also undertakes different exercises to gauge the extent and pattern of certain kinds of crimes and this informs its response. So that is all great.

However, there is much scope for deepening and widening the data collection as well as the subsequent analysis and use of the same for meaningful diagnosis, planning and forecasting. Like in most other areas there is also a great need for better communication and cooperation between different police departments and functions as well as close information sharing and consultation with other justice sector institutions. Much as some commendable work is being undertaken by all concerned there is nothing like a structured regular sharing of information and ideas to develop an overall and dynamic justice sector policing and crime fighting approach. It is simply not tenable to remain insular when you are serving the needs of over a hundred million people in a complex society. The Police’s operational and strategic decision-making needs a lot more sustenance from good data dosages.

The judiciary confronts the same issues and if anything it is some steps behind when it comes to quality and depth of data analysis and usage. A lot of the data it collects is not sufficiently disaggregated and hence not that useful. One often misleading notion is that technology is a silver bullet and thus will solve all problems. Any technology or software is as good as the manner in which it is used and the information fed into it. If your processes and systems are obsolete, automation will have minimal impact. If processes and systems are upgraded, automation will tremendously boost performance. Institutional leaders often get seduced by the bells and whistles of technology and gadgets as buying them (unlike undertaking process reforms) involves less effort, the acquisitions appear fancy, and are easy to show off. We need to graduate from this mindset and think in terms of structural, process and cultural changes - they are slow and hard but the benefits are vast, deep and enduring.

TNS: What steps can be taken in the area of police training? Has the government introduced any new models of police training?

OS: They have introduced some new modules of training and endeavoured to upgrade teaching methodology. It will add value but it has its limits. If the police rules, protocols and processes remain outdated; if the manner in which a Thana operates remains essentially unchanged, as do the TORs of the SHO; and if police investigations continue to rely on an outdated method, there is not much that training can change. New and better standards are needed, as are better internal and external incentives and accountability. These will usher in hopefully a change of ethos and culture. Once you have modern, scientific and accountable standards and processes, training in the same is vital and will add tremendous value.

Better role definitions, streamlined and transparent processes, tighter checks and balances, and meaningful citizen involvement and interface ought to be the priorities. The tragedy is that even when the police does a great job under highly adverse circumstances a poor communication strategy means that they hardly get any credit. Perceptions are as important as reality and all the justice sector institutions face the challenge of not only boosting their performance but also rebuilding their image. Weak and dated standards and processes create opportunities for abuse of power, corruption and elite capture. But corruption or poor implementation or abuses of discretion are in many ways manifestations of the underlying problem, which is that policing and adjudication are being administered in a weak and outdated manner. It is very much a managerial and administrative problem and requires managerial and administrative solutions. Information and its usage are also key. We now have all kind of information on every provincial police functionary in the database. The next step is to use it to incentivise, monitor and regulate them.

I must confess that the more I work in this area I realise that notwithstanding dynamic and right-minded officers and judges it is naïve of us to expect institutions to reform themselves. Without external demand and pressure it will simply not happen. Which is why it is vital for media to boost and sustain meaningful debates and build pressure. High time that we quit speaking solely in broad, vague and negative terms such as corruption, delay, misuse of power etc., – we need to understand and advocate specific ideas such as investigative standards, forensic evidence, caseflow management, prosecutorial tests etc. The media needs to educate itself and then the rest of us.

TNS: Is the prosecution doing its job?

OS: One should examine the gate-keeping role of the prosecution that is cardinal. They have to make an independent assessment of every case -- whether it is something worthwhile from a public interest standpoint and will result in conviction. There are still many cases in court that don’t belong there. And the conviction rate is moving in the right direction but there are miles to go. I would say the trajectory is definitely positive but lots still needs to be done. The department is making efforts to raise its internal professional standards and bolster monitoring. The abysmal quality of our legal education means that the catchment area for legal talent is very narrow. Training does help but strong law school education is vital. Prosecution needs to carry on what it is doing as it is growing in stature every year. However, there is a need to revisit the applicable laws to enhance its role and powers and also to increase its say in investigations to the extent that it has a bearing on the quality and integrity of evidence collected. I believe the police and prosecution also need to engage and cooperate more often at a strategic level as well, while ensuring the autonomy of their relative tasks.

TNS: How do you view the judiciary in this triangle -- police, prosecution and judiciary?

OS: The judiciary is the most cloistered amongst the three in the sense that it is the most opaque, the least communicative and also the most resistant to ideas of the 21st century. One reason is that police and prosecution are both politically accountable as well as the recipients of public and media feedback and outrage. Courts are meant to hold themselves accountable and very rarely do. They also don’t take kindly to criticism. Judges all over the world are in any event conservative when it comes to abandoning cherished, even if decaying and corrosive processes. It is also the most hierarchical institution and very much dominated by chief justices. There is a marked absence of meaningful dissent and that means that institutional direction very much depends on the inclinations of individuals rather than on an institutional vision arrived at through a deliberative process. Chief justices often have short tenures and can’t achieve much. Also, when they leave the newcomer transfers all persons in key posts. Hence, there is hardly any continuity and institutional memory. As you can imagine these are major impediments to reform.

To further confound things we also now have the enormous challenge of a largely unregulated bar. These are rather desperate times and require equally desperate remedies. Beyond its constitutional function the judiciary ultimately provides a service. It has to reform, modernise and be held accountable, therefore, like any other service delivery institution. The status quo will only make things worse as far as justice delivery to ordinary citizens and the stature of the judiciary are concerned. It also vital that the reform gaze focuses on the district judiciary, where 90 per cent of the Pakistani litigants fight their legal battles. Conditions there are tough and the district judiciary requires better leadership, support and encouragement.

Unlike other departments the judiciary does not develop annual plans and whatever targets it has are rather narrow and disposal focused. It needs to boost its technical administrative capacity as well as strategic planning. The judges of the appellate courts are very burdened with court work as it is and hence the High Court is ill-equipped to supervise the overall administration of justice in the province unless it adopts better processes, meaningfully uses technology, discourages frivolous cases, and hires fresh and high qualified administrative talent for management of data, human resources and caseflow. The judicial leadership needs to consult its colleagues a lot more and also with its counterpart in other departments to meaningfully address common challenges for the betterment of public. The Punjab Judicial Academy has been around for some time but needs greater autonomy as well as more rigorous academic and administrative policies and pedagogical innovation. The problems with our criminal justice sector are fairly well understood these days. The real challenge is to find the impetus and leverage to bring about change in view of the various custodians of inertia and the political economies of status quo.

TNS: With this backdrop, how do you look at anti-terrorism courts?

OS: See, the problems that plague anti-terrorism courts are the same as I have mentioned -- our administrative approach and system are obsolete; we haven’t revisited and updated the evidence law, criminal procedure etc.; there is no protection system for witnesses, judges etc.; and, we don’t use forensics as much as we should. In terrorism cases, you need to use intelligence, forensics techniques, unravel how the crime or a terrorist act was planned; you need centralised records, and, inter-agency coordination to share information. Society is dynamic and so is crime. There is a perpetual imperative to stay one step ahead of it and not two steps behind. Some recent reforms include introduction of video-links for recording evidence, new training modules etc. However, a lot still remains to be done.

Read Also: Dealing with the backlog

TNS: Finally, a few words about the jails?

OS: Our penal system is much more backward than whatever has been discussed so far. Not much has really changed since the colonial authorities introduced institutionalized jails except in terms of physical capacity perhaps. We hardly use probation and parole and when we do we don’t use modern risk assessment techniques. We need to both ensure that we reduce jail populations and simultaneously monitor those released on probation or parole. Rehabilitation is also key whether in jails or without. If we continue to neglect this area many will unnecessarily continue to suffer and become hardened criminals in incarceration or become victims of recidivism due to inadequate supervision and support.


-- By Ather Naqvi

"Raise standards of investigations, prosecutions and court adjudications"