Prosecution and the rule of law

Published: February 5, 2014
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The writer is Executive Director of the independent Centre for Research and Security Studies

The writer is Executive Director of the independent Centre for Research and Security Studies

The UN secretary general in a 2004 report, The rule of law and transitional justice in conflict and post-conflict societies, defined rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights, norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”

Viewed in this context, Pakistan has to go a long way in establishing an indiscriminate, across the board and access-to-all justice system. Lacunas in prosecution procedures, an outdated prosecution framework and a fledgling commitment of the prosecutors to their duty are some of the factors that severely undermine the results.

Consider any terrorism-related case and you will find it gathering dust in cold storage. The First Information Reports of many terror-related cases were filed against ‘anonymous’ attackers and thus, the police could not go a long way ahead in their investigations. In cases where the police have claimed to having arrested the handlers, who planned the attacks, they have later been released by courts for a lack of evidence.

All the accused in the Marriott bombing case were acquitted, with Justice Raja Akhlaq Hussain observing that “the prosecution routinely fails to produce evidence that can be upheld in a court of law”.

It was in this context that Justice (retd) Nasira Javed Iqbal recently told a gathering of experts in Lahore that an independent and incentivised prosecution service was of central importance to the justice system. We must ensure that no innocent person is punished and no criminal goes scot-free,” she said. Justice Nasira Iqbal argued that the independent prosecution service was also essential to check white-collar crimes, such as those involving the powerful elite, who used political influence to pressure prosecutors.

Rana Maqbool, special assistant to the chief minister of Punjab, also pointed out the difficulties faced by the prosecution department, including deficient intellectual capacity, poor training and insufficient monetary incentives for the prosecutors.

Interestingly, Punjab is the only province with a formal Prosecution Department, created in 2006. Currently, the Prosecution Department, according to Maqbool, is offering training to improve the methodology employed by prosecutors with the support of the German Agency for International Cooperation, which involves intensive training for state prosecutors.

Maqbool also spoke of efforts to improve “efficiency and enforce discipline” within the Prosecution Department. A state-of-the-art forensic science laboratory and a prosecutors’ training school in Lahore were some of the steps being taken to improve prosecution services, according to him.

One hopes that the Punjab Prosecution Department can match its words with action and serve as a catalyst for similar services in other provinces too. Legal experts, such as Justice (retd) Iqbal and Ahmer Bilal Soofi, insist that the confidence of the citizen in the state prosecution services can be restored only through demonstrable actions. For this, the prosecution service must be backed by legal tools that are in sync with Pakistan’s current challenges that arise from rampant crime, raging militancy and an overbearing ruling elite. Both the state institutions and the ruling elite must lead by example to convince citizens of their commitment to the rule of law.

Published in The Express Tribune, February 5th,  2014.

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Reader Comments (1)

  • Mirza
    Feb 5, 2014 - 1:05AM

    In most countries the prosecution, defense and neutral judiciary are essential for dispensing justice. In Pakistan most rich, powerful and particularly the terror groups have created an environment of terror so nobody can testify against them. In a country where even police is not safe how could witnesses feel safe? It is this culture of terror and its tacit acceptance by all institutions that is depriving the victims and their families of justice.
    On the other end when the establishment wants to frame or punish somebody the courts become prosecutor, witnesses and judge at the same time. A recent example is HH memo case where the courts did not let the govt to have public prosecutor, or witnesses. The court (three HC CJ) reached out to a single shady foreigner and used his sole testimony and brought the court to his doorsteps to act as prosecutor, and judge at the same time without even face to face cross examination. It was a uniquely dark chapter even in our history.

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