A judge of the Supreme Court of Pakistan, His Lordship Mr Justice Jawwad S. Khawaja, has appointed Senior Advocate Khawaja Haris Ahmed as an amicus curiae in a case titled Haider Ali vs. the District Police Officer, Chakwal, asking him to assist the apex court on the redress mechanism of grievances of public at large in an effective and efficient manner. For this, Khawaja Haris wrote letters to the Attorney General of Pakistan, all the provincial Advocates General and eminent police officers to elicit their point of view on the said matter. On 3rd of March, Khawaja Haris presented his point of view after examining the viewpoints of many a relevant person. Since the issue of reforming the criminal justice system is in the limelight due to the aforementioned suo motu action by Justice Khawaja and due to the introduction of military courts through 21st Amendment to the Constitution of Pakistan 1973, it may be apt to dedicate this space to an exploratory write-up, in which, some of the chief aspects of the criminal justice system are examined.
1. Reform vs Incremental Improvement
In Pakistan, it is conventional to use the word ‘reform’ to indicate any change in the existing state of affairs; the real purport of the very word ‘reform,’ however, may imply major and lasting change. Notwithstanding whatever our intelligentsia and officialdom claim, the ‘reform’ in justice system will entail major changes in the legal framework, the work-ethics, the dynamics of decision making, the autonomy of institutions and the will of the participants and components of the criminal justice system to introduce and sustain change. In this context, it may be appropriate to call the attempted changes ‘initiatives’ or ‘improvements’. Besides, any meaningful reform will have to be incremental as a revolutionary reform may not be possible or even desirable.
2. Pakistan Law Commission Report No. 22
In 2001, the Pakistan Law and Justice Commission submitted its report (Report No. 22 of PKLJC) related to the Criminal Justice System of Pakistan to the then Chief Justice of Pakistan Justice Irshad Hasan Khan. On perusal of the report, the honourable Chief Justice took suo motu notice of the matter (PLD 2001 SC 1041) and directed all the Advocates General of the provinces, the Home Secretaries and the Inspectors General of Police to submit their reports about the compliance of the recommendations. While examining the locus of maladies in the system, the honourable Court observed:
“…The unfortunate delay occurs in the disposal of civil and criminal cases due to several reasons, and many sections of the society are responsible for the same. However, in the criminal cases, which have direct nexus with the law and order situation in the country, delay impacts negatively on maintenance of peace and security in the society and is harmful.” (Per Irshad Hasan Khan, CJ)
Hence, the present initiative by the honourable Supreme Court is not for the first time that the apex court has indulged itself in such an important matter. Along with the initiatives of the SC, various international human rights bodies and think tanks have also indicted the justice system of Pakistan. In 2010, the International Crisis Group presented its report on the subject styling it as “Reforming Pakistan’s Criminal Justice System”. The persistent nudging by the apex court, the international human rights organizations and think tanks has not been able to do much, as research has vouched that no change in an organization can be effected from the outside; the change, more often than not, is infused through internal mechanisms, and in case of criminal justice system, the internal mechanism comprises components of criminal justice system, which have, by and large, preserved the system instead of improving or changing it.
3. Separating Criminal Justice from the Civil Justice
There is a propensity to examine criminal and civil justice systems in isolation, whereas, in reality, the two are interdependent. The pace of painfully slow relief at the civil justice side has reinforced the tendency of incriminating family, land, recovery and domestic disputes. At the cost of excessive generalization, it may be stated that almost all the litigants tend to explore criminal remedies to settle their matters. The factual side of the matter is tampered with legal advice and the matter is made cognizable to attract registration of a criminal case. The law of free and fair registration is then mocked to the fullest and serial criminal cases are registered resulting in loss of time, resources and prestige of the police or more rightly the state. On the other hand, the information regarding heinous and hardcore crimes sparingly gets registered. Likewise, complainant of a false, frivolous and baseless criminal case is not proceeded against, or punished due to non-cognizance of such matters under the law. Striking the right balance between criminal and civil justice, therefore, may be one of the chief reasons to be considered as locus of malady.
4. Legislative Framework
The codified legislation is a living organism in the modern times; it has to keep pace with the challenges of a society, which are quintessentially urban, and technological. The archaic legislation of the Code of Criminal Procedure (CrPC) warrants urgent rewriting which is wanting also for isolated proposals on the subject. Section 154 of CrPC should ensure free, but fair registration; making it free without making it fair deters serious reform. Likewise, Section 182 of Pakistan Penal Code (PPC) may be made cognizable to ensure promptness in culpability. The plenary jurisdiction entrusted to the office of magistrate may be strengthened as copies of all registered criminal cases are delivered to it on daily basis, and there is no bar on it to take rectificatory measures; for it, High Court Rules and Orders may be updated and amended as provided under Section 554 of the CrPC.
Another aspect that may need immediate consideration is the decoupling of registration of criminal case and power to arrest. Hypothetically and legally, the registration of criminal case and power to arrest are separate, but when it falls in the domain of adjudication, minute, certain and consistent guidelines be given either through statutory rules, or through authoritative judgements of superior courts.
The subject of finding faults with the system is, in itself, absorbing, but it cannot become a point of departure for any change. Following recommendations are offered to excite further thinking:
- There is a strong case to establish Provincial Commissions on Justice System in all the four provinces of Pakistan, in which, all the stakeholders should participate. In such a commission, there is a general tendency to bludgeon one component of the criminal justice system i.e., police for all the ills in the system; this is neither fair nor utile. A more prudent way would be to invite competent police officers to offer their input as partners and collaborators. These provincial commissions should not only offer their recommendations on substantive law, but also towards adjective law. The subjects of pleadings and practical police work should be examined and codified for the sake of certainty, uniformity and accountability.
- There is an axiom: “You can’t manage what you can’t measure.” For the sake of crime statistics, third party evaluation by non-corporate entities may be carried out. For example, the Lahore University of Management Sciences and the Government College University, Lahore may be invited to scientifically evaluate the incidence of crime and to offer prioritization scheme to guide police to allocate their resources accordingly. Besides, the guidelines may be issued by hiring experts on counting crime before making strategies to combat it.
- Sections 154 to 173 (legal provisions dealing with registration and investigation of criminal cases) of the CrPC may be amended to bring them at par with the best international practices. For instance, the time allocated in Section 173 of CrPC for finalization of an investigation is 15 days; no matter what is the type of crime under consideration. Under the existing system, pickpocketing and a multiple murder case get equal time for submission of final reports under Section 173 of the CrPC; this may be rationalized to make the system logical and practicable.
- There must be some mechanism to help public at large in respect of petty, family, financial and revenue matters without resorting to the mainstream criminal justice system. For this, alternate dispute mechanism on criminal side needs to be introduced. Under Section 35A of Code of Civil Procedure, a scheme for compensatory costs in respect of false or vexatious claims has been provided on the civil justice side; an akin clause in the CrPC is now needed for criminal justice system as well. Sometimes, Article 168 of the Police Order, 2002 is considered a substitute for this mechanism, which is not correct. Legally, the Citizen Police Liaison Committee (CPLC) is mandated to only liaise between police and the citizens; its role for reconciliation is really limited. The Punjab Local Government Act, 2013 provides in its Sections 96 to 99 for Panchayat and Masalahat Anjuman for amicable settlement of the disputes. The mechanism may be implemented on emergency basis to mitigate unnecessary and irrelevant criminal litigation.
The aforementioned proposals are by no means exhaustive, and are open to further discussion with one caveat: it is desirable that socio-political realities of this land of Pakistan should not be lost sight of. The present system evolved in the context of Common Law, which was essentially alien to this land and its people. While elucidating the link between the Common Law and people and land of the UK, Lord Denning (former Master of the Rolls in the UK), in his book ‘What Next in the Law’,
‘A man may speak the thing he will,
A land of settled government,
A land of just and old renown,
Where Freedom slowly broadens down
From precedent to precedent.’
Conversely, Dr Osama Siddique, an indigenous legal academic, in his book ‘Pakistan’s Experience with Formal Law: An Alien Justice’ has vehemently argued that a multidisciplinary approach should be taken for reform in the justice and legal sector in Pakistan. He beseeched:
“Shift the focus of justice sector reform from a purely technocratic/legalistic perspective to a legal-sociological viewpoint”.
In consonance with the spirit of Dr Osama’s argument, there is a strong case for people of Pakistan to look inwards for solutions, rather than looking outwards.