For how long will the rulers ignore the dire warnings of an impending chaos?
The ever-rising incidence of crime — particularly those targeting women and children — has once more highlighted the need for an overhaul of the criminal justice system in Pakistan. The present system has failed.
The causes of failure are many. These must be analysed carefully in order to formulate a more responsive, more robust and quick strategy and an amended law that encompasses all the elements of a just, expeditious and less expensive mechanism.
Rank and file Pakistanis have lost faith in the ability of the police to help the victims of crimes in terms of quick action against the culprits. The accused in most cases are either not arrested or taken in custody after long delays. This gravely impinges on the outcome of the case in a court of law. The poor face the wrath of the law enforcement agencies while those with ‘links and connections’ get away easily.
Police investigation takes a painfully long time. Either there is no motivation or there is lack of supervision. In some areas the police do not have enough human resources to confront the large number of cases that it is mandated to investigate.
The prosecution of the cases is even more frustrating. There are long delays, repeated adjournments caused either by the absence of lawyers, parties or the non-availability of the presiding officers. Cases are prolonged to the dismay and frustration of the parties. The cases lose their relevance as years pass by. Then there is the appellate stage. More time wasted; more money spent on lawyers’ fees; more anxiety; and more despondency.
The judicial processes take years, sometimes generations because of the decrepit system that does not meet the criteria of a quick justice.
One of the most agonising and inexplicable maladies is the non-accountability of courts in cases of long delays or the incorrect interpretation of law. There is hardly any instance in which a presiding officer of a court has been held to account for the unwarranted delay in the disposal of criminal cases. There is hardly any supervision over the conduct of judicial officers. An institution that deals with the cases of millions of people every day must have built-in mechanisms to ensure that delays don’t occur, that cases are disposed of on merit and that any delinquency is brought out and rectified and those committing any deliberate or unintended misreading of law are brought to the book.
Institution building has been a principal casualty of the military dictatorship in the country. The last military ruler dismantled the institution of District Magistrate and Sub-divisional Magistrates. These institutions were uniquely suited to the conditions of South Asia. There used to be quick dispensation of justice at the district level thanks to well-trained and motivated magistrates who operated under a strict system of supervision. That system operates with success in neighbouring India and Bangladesh even today. On the one hand, the system of magistrate ensured rapid disposal of criminal cases and on the other, it was a check on police performance. No one could exercise a more immediate and more meaningful control over the performance of police than a district magistrate. That was a system which ensured an institutionalised check and control over the performance, actions of a force that came into contact with millions of people every day.
The system operated on the principle that a force which has unbridled authority to arrest citizens must have a fear of an authority or officer who is not only a coordinator but also a trained judicial officer. This system delivered and is still a cornerstone of the criminal justice system in other countries of South Asia.
The lack of timely completion of criminal cases causes anger. It operates to the benefit of the culprits. It is not surprising that the rate of convictions of the accused in criminal cases is one of the lowest in the world — hardly 4%. The rest get the benefit of the doubt.
Just the other day, a moot organised by the Pakistan Bar Council urged the government to review the system of the appointment of judges to the High Court and Supreme Court of the country. The forum was clearly calling for an overhaul of the whole system so that the judges of the High Court and Supreme Court are appointed on the basis of merit-cum-seniority in a transparent manner. Only by such a fair system which leaves no room for personal preferences can the goal of a just selection of judges be realised.
If urgent actions are not taken, public anger would soon be overwhelming. The system must not operate to the benefit of those who rape women and children and destroy families and society. It should be made to operate to help those who have been wronged. Without exemplary punishments the rising wave of crime cannot be controlled. The examples of those countries which award exemplary punishments for crimes against women and children is before us. One case in point is Saudi Arabia where culprits would have to think 10 times before assaulting women and children.
Published in The Express Tribune, September 22nd, 2020.
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