Every civilized society requires a criminal justice system. This is a concept that most people are aware of. What could be more deleterious than not having a criminal justice system? The answer: an outdated, equivocal, inefficient system.
Lord Kilbrandon, a Scottish judge and Chairman of the Scottish Law Commission, in 1965 famously said “The ship is well designed, fundamentally sound, and is for most of time on a correct course; what is wanted is an overhaul and modernization of the navigational instruments, so that she is more easily kept on that course.”
The Lords words are an immaculate fit for the instrument that governs Pakistan’s criminal justice system, the Code of Criminal Procedure, 1898.
Attempts At Reforming the Criminal Justice System
Well over a century old, the code requires extensive overhauling. Since the inception of Pakistan in 1947, there have been attempts to reform the justice system. Unfortunately, most of these attempts were aimed at reforming the Civil Procedure Code and the Civil Law overall. In 1997, the Law and Justice Commission on its own motion took an exhaustive study to propose reforms in the criminal justice system. The report prepared by the Secretariat was placed before the Commission in its meeting held in 1997. The Commission after thorough discussion and deliberations unanimously approved the proposals.
However, most of the proposals approved by the commission were administrative reforms in nature and pragmatically did not make the vexatious experience of court proceedings better for litigants.
It would be necessary to point out that the causes of delay in litigation are not mere technical or procedural flaws in the system. There are other elements, equally responsible for the same. The Bench, Bar and litigant parties, though essential components of the system, at times constitute a triangle of delays. In the case of the Bench, it is partly because they are over-burdened: they have to dispose of maximum number of cases in the shortest possible time – an unrealistic and fault-triggering expectation. As for the Bar, it is due to overcommitment, lack of training, political interests, lack of professionalism and lack of sincerity towards their work. Certain litigants, who instruct their counsel to exercise all possible measures in order to delay proceedings, brazenly give false testimonies in Court and use external methods of coercion. Combined, they are equal contributors in the inefficiency and inequity of the system.
The issues are evident. In order to ensure expeditious trials and fairness, we must focus on possible solutions and reforms. The following are suggestions on how the Courts, the Bar, Litigants and the Police could come together and take steps in improving the speed of criminal trials, pending any formal legislation in formally reforming the Code of Criminal Procedure.
Non-Submission of Challans in Time
The “Challan” is a document, produced by the Investigating Officer assigned to a case. The Challan comprises of the investigation conducted by the Investigating Officer and his/her findings. The lack of trained investigating officers, delay in obtaining expert opinions, lack of supervision by senior officers and corruption are reasons for delays in the submission of challans. Essentially, unless the Challan is produced in time, the case cannot move forward. The Challan is framed under section 173 of the Code of Criminal Procedure 1898 and must be submitted within 14 days.
Non-attendance of witnesses
The non-attendance of witnesses also causes delay in the disposal of cases. Witnesses generally tend to avoid attending the court. This is due to factors such as the distress of waiting for long hours outside the court, non-provision of adequate traveling allowance and diet money, absence of proper arrangements for their seating, lack of courtesy being shown to them and non-availability of security for them. It is serious problem for the witnesses to attend the court repeatedly as a result of frequent adjournments.
These problems can be avoided by providing proper seating arrangements in Court premises for witnesses and litigants. The scales of daily allowance and traveling allowance should be enhanced, in keeping with the prevailing costs, and this should be promptly paid by the respective presiding officers. The parties to the trial and witnesses must be assured protection so as to be able to make appearance before the Court and state the truth. In respect of the Government servants, neglecting summons, the court should communicate the fact to the head of the department for appropriate disciplinary action.
Case Management System
There is a dire need for measures to eliminate delays due to frequent adjournments. It can only be possible if the presiding officer refuses to grant unjustified adjournments. It has often been observed that in the courts where the presiding officer has to cope with a daily cause list of 120 to 150 cases, adjournments are not voluntary but a situational imperative. These problems can be tackled by establishing case management committees at each district headquarters headed by the District and Sessions Judge, a Senior Civil Judge, representatives of stakeholders and their counsel as members.
The committees may be entrusted with the category-wise prioritisation of cases, on the basis of their importance e.g. (i) the nature of cases, (ii) dates of institution, (iii) location and value of the property in dispute, (iv) civil rights involved, (v) the parties, (vi) impact of the ultimate decision, (vii) the number of persons affected by the decision of the court, (viii) involvement of public interest, (ix) the nature of questions involved for determination, (x) whether any temporary injunction has been granted in favour of either of the parties, and (xi) other relevant considerations.
Encouraging Alternative Dispute Resolution in Criminal Cases
Section 89-A of The Code of Civil Procedure, 1908, provides that where it appears to a Court having regard to the facts and circumstances of the case that the dispute is fit to be settled through a process of alternative dispute resolution, the Court may in all Civil and Commercial cases require the parties to resolve their issue outside the Court, by choosing ADR methods such as mediation and arbitration. A provision similar to section 89-A of the Code of Civil Procedure should be included in the Criminal Procedure Code as well. This would drastically reduce case load, costs and ease the arduous experience of going to Court for litigants.
To be sure, reforms are a step towards addressing such issues. However, lack of implementation and sincerity nullify the former. There is no doubt that the instruments governing the justice system in Pakistan are in need of reform. Though there is a lack of trust in society that has built up over time due to the non-implementation of existing Laws, the need for overhauling and reforming the Code of Criminal Procedure, 1898 is long-overdue, to say the least.
In order to reestablish trust between the institutions responsible for exercising law & order and the people, a litigant friendly, unequivocal and modern instrument for governing the criminal justice system is required. The legal fraternity and the country awaits.
For legal reforms to be legitimate the country needs representative governance. It cannot be carried out by lawyers. They do nor represent anyone nor are they accountable to anyone.
The backlog in unresolved cases will take 200 years, yes you read that right. Visit a jail and ask the imprisoned how long they have been incarcerated while awaiting trial. How their family is suffering, who is taking care of them while the bread-winner is locked up awaiting their day in court?