Need for an independent prosecution service

Justice is considered to be the foundation of an ideal state whereby all organs of the state are required to ensure justice. However, when these organs fail to deliver, the onus ultimately lies on the judiciary to carry out the task of dispensation of justice. The judiciary is considered to be the guardian and the ultimate interpreter of the Constitution. Therefore, an independent judiciary is essential for a well-functioning state.

With the promulgation of the Constitution of Pakistan in 1973, it was made mandatory under Article 175(3) to separate the judiciary from the Executive. However, this process got stalled due to martial laws and occupational interests of the services. But after a long and arduous struggle, the judiciary was finally separated. The ruling came during the course of the interpretation of Article 175(3) which states that, “judiciary shall be separated progressively from the Executive within 14 years.” The court held that as per the constitutional mandate, the functions of the magistracy should be bifurcated and the judicial magistrates be placed under the administrative control of the High Court. Later, the Supreme Court in the cases of Al-Jehad Trust v Federation and Asad Ali v Federation also maintained the same concept.

On the same analogy, the prosecution, being an integral part of the criminal justice system, is also required to be independent of the Executive in order to meet the dictates of justice. Since arrest, detention and prosecution are directly linked with liberties of the people and is a part of fundamental rights, the independence of prosecution services assumes the highest degree of importance.

Independence provides courage to proceed in accordance with law, equity and good conscience. Without pressure from the government, an independent prosecution properly evaluates the evidence and then decides on whether to forward the challan to the court or not. However, a common practice is that challans are forwarded in a mechanical manner without proper deliberation. As a result, hundreds of people languish in prisons for years despite insufficient evidence before ultimately being acquitted, making a mockery of the justice system. Obviously, the function of a public prosecutor is vital for those involved in criminal trials. The right to liberty, security of a person, and the right to procedural fairness are the main considerations while framing criminals under the rule of law. Articles 5 and 6 of the European Convention on Human Rights say that prosecutors should adhere to fair procedures and act as a bulwark against human rights abuses. Therefore, a prosecutor not only owes a duty to the nation as a whole but also to each individual person. He owes a duty of fairness both to the suspects and the victims of crime.

Prosecutors are under an obligation not to indulge in discrimination on any grounds whether it be sex, race, colour or religion. Observance of the principle of equality before the law is yet another of their obligations and they must be aware of all the relevant circumstances including those affecting a suspect, irrespective of whether they are to the suspect’s advantage or disadvantage. They are not to initiate or continue prosecution when an impartial investigation shows the charge to be unfounded. And under no circumstances should public prosecutors put forward evidence against suspects obtained through means contrary to the law. Whenever doubt arises, they are bound to ask the court to rule on the admissibility of such evidence.

The standards set by the International Association of Prosecutors (IAP) requires prosecutors to prosecute cases “firmly but fairly… and not beyond what is indicated by the evidence”. Similarly, the Venice Commission’s report on the independence of the prosecution service also lays emphasis on the qualities of prosecutors. Having referred to the importance of the prosecutor acting to a higher standard than a litigant in a civil matter — because a prosecutor acts on behalf of society as a whole and because of the serious consequences of criminal convictions — and having referred to virtues such as fairness and impartiality, the commission points to the necessity to employ persons of high moral standing and good character as prosecutors.

If we consider most developed and civilised societies, in particular England and Wales, they have set their prosecution services on the concept of being independent from the Executive. Pakistan’s legal system has been adopted from the Anglo-Saxons and follows the legacy of the British Raj. The Anglo-Saxons have with time progressed with independence of their prosecution and so has Pakistan to some extent. We had, under the Police Order 2002, separated the investigative functions of the police from its watch and ward functions. As such, the investigation wing is independent of those arresting or registering FIRs. Under the same concept, other provinces barring K-P have established Prosecutor General Offices which are independent from the Executive. In K-P, under the Prosecution Act, the prosecution is still under the Home Department and operates under the dictates of the Executive — despite the fact that the Executive had before the Superior Court committed for the creation of an independent office of the Prosecutor General.

The conclusion which can be drawn from these comments is that independence of the prosecutor does not exist as a value in itself but rather as a means of preventing improper or external interference, just as a judge is expected to act fairly and impartially without being subjected to outside pressures. Therefore, the immediate creation of an independent office for the Prosecutor General is a necessity for the proper functioning of the justice system in K-P.

Published in The Express Tribune, May 18^th, 2022.

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