April 15, 2014
Dispensation of Justice is Becoming a Mockery in Pakistan
By Saeed Qureshi
The latest string of verdicts handed out by the superior courts in Pakistan convey the message and a kind of impression that the judicial system in being politicized. The superior courts particularly the incumbent bench under the sitting chief justice Mian Saqib rightly or wrongly emits a feeling as if the chief justice and members of various benches have tilted in favor of some politicians and against the others. Otherwise how is it possible that only former prime minister Nawaz Sharif is the only and the leading criminal and culprit and therefore is the recipients of the sentences from disqualification to p0ssble jail terms.
Nawaz Sharif and his cohorts while in power and the family members might have committed egregious financial corruption including flight of the wealth from Pakistan to overseas banks However, it is unbelievable that others in power corridors are not involved in such scams and should be immune from the judicial actions and retributions.
There have been quite a few cases of mega-corruptions, making of assets, selling and buying costly properties, taking grafts and fattening wealth in Pakistan as well as abroad. Yet it seems that they are being treated like the holy cows and untouchables for questionable reasons or grounds.
There have been mega cases of moral, ethical and financial misconduct by many business tycoons and prominent politicians. Yet they are roaming untethered in the length and breadth of Pakistan and free to make foreign tours and remain busy in political arena. In their cases, the judiciary looks the other way and have either refused to entertain those cases or those cases were put in a limbo or dismissed summarily. I am not taking names lest I might be branded for taking sides.
But the glaring fact is that there are holy cows from among the politicians who enjoy all the liberties and privileges besides their foul mouthing yet they are at large and being treated as innocents.
How long such brand of selective justice would remain in vogue. Could there be possibility or an outlet by which the dispensers of justice can also be questioned about their partisan conduct while dealing with the top-notch politicians and power holders in Pakistan.
Amazingly of late, the incumbent chief justice of Pakistan Mian Saqib Nisar has assumed also the role of an administrator and is making appointments and giving jobs to the individuals on his how volition. He is also making surprise visits the offices, the market places and bazaars and issue orders for arresting someone on the spot for some kind of violations. Those officials who have been sacked remain high and dry and without any legal recourse. Someone among these people may like to challenge the Chief Justice on his spot decisions. But there is no way or legal recourse through which the giving of jobs or sacking the individuals in the public places by a judge or even the Chief Justice can be challenged.
Such kind of arbitrary, spontaneous street justice was done by the Kadis (religious ombudsman) in the Islamic countries in the past. They were appointed by the kings, caliphs or the despots to nab those who were disobeying them or involved in over- pricing or hoarding etc. This kind of justice was also prevalent to take cover under the religious canopy to sustain a kind of justice that didn’t offer a defense by the perceived offenders. Those people were also lashed in public view.
As such the incumbent head of the Supreme Court in Pakistan has opted for himself to be a Cadi or Qazi of the olden times and award punishment to those he deems as law breakers. This latest primitive mode of justice adopted by the protectors of law runs in the very face of a government and institutions that are formed through a constitutional process and functions in a civil society.
The task of the superior or junior courts is to interpret law in such a way that it doesn’t look partisan and dominated by the personal liking or disliking of the judges and magistrates. The justices and judges don’t have to roam about the locations and issue orders on the spot for poo civic services or streamlining the traffic etc.
The formulation and the interpretation of law is of paramount significance for a nation state (not Islamic or despotic) like Pakistan. It is not desirable for the members of the judiciary to become roll-coasters. Instead these luminaries ought to advise about the betterment of laws for the efficient working of the departments such as local governments, lower courts, police, education and medical, law and order and to curb corruption etc. Unless and until there is no overhauling of the departments and their administration betterment, then on the spot or surprise checkup or punishments would be ineffective.
There is a dire need to strengthen the court and the institutional system rather going out in the public by the judges to administer justice and award punishments. This is an encroachment upon the mandate given to the respective local bodies and departments. Such departments can be the local governments, which are mandated to look after the markets, check the prices and adulteration, educational institutions and
other civic bodies.
On the other side, how can justice be delivered in a country where murderers and rapists get away with payment of the blood money or reconciliation with the aggrieved party? This reconciliation is imposed, more often than not, on the victimized party by threats or intimidation. In other instances, a payment as compensation is settled with the harmed side and the courts acquit the villains.
It means that anyone with a heavy purse and a gun can shoot anyone in broad day light and prevent the due process of law by undercutting it with payment of money. The perpetrators of heinous crimes like murder and rape are usually goons with lot of money and therefore laws can be bent if they can pay for blood money. On the contrary a poor guy who injures or even kills someone cannot have such an escape route and therefore languishes in jails for years and finally to be hanged or awarded life sentence.
We have seen that in myriad criminal cases a roughneck forced the weaker party to come to terms and bargain to let the offenders walk their way. Not long ago a high-profile murder case hit the headlines for pretty long time. The flamboyant and defiant son of a super duper feudal along with his equally roguish buddies killed a police officer with impunity. The principal culprit was given death sentence but was later freed after paying the settlement amount with the aggrieved party.
I have been reading about a flurry of such court settlements in which the persecuted party was coerced to state before the court not to pursue the case because they had either pardoned the offenders or had accepted the retribution by way of a handsome amount of money.
There are various glaring factors that hinder the swift, condign and deserving punishment to the criminals and outlaws. It is seldom and unheard of that any rapist even proven was ever punished by a court. The lacuna is the presentation of four witnesses by the female victim as evidence. The production of this evidence is like asking for the moon. As such all the rapists and womanizers remain immune from the grip of law whether it is civil or the Shariah court.
For the aggrieved party it is absolutely imperative to produce the witnesses who had seen the crime being committed. First of all, it is a tall order for the persecuted party to find out the witnesses because most crimes are not committed in public view. Even if there are people who were onlookers or present at the crime scene they would not pick up the courage to come forward voluntarily or otherwise to be witnesses for a variety of compelling reasons. They would be aware that they would remain under a perpetual spell of fear and paranoid as long as the case is not decided.
Secondly, the cases on our courts take years from start to the end. The witnesses have to appear on each hearing before the court that disrupts their jobs, and other activities of life. One would not wish or prefer to be caught in a grinding gridlock at the cost of disturbing their life and peace of mind. In the courts a witness is harassed, ridiculed and even humiliated by the defense counsels each time for hours. Any individuals even with strong nerves cannot stick to a statement verbatim each time as the prosecution or the defense make every effort to find out contradictions to prove the witness as a liar.
The aggrieved party hires the false or professional witnesses on payment for each appearance in the court. He has to bring them fully protected, take care of their traveling expenses and food etc. Most of the witnesses that are produced in the courts are therefore not genuine.
The evidence is taken after adjudication of case for a pretty long time. By that time even if there were real eyewitnesses would forget the real scenes, the directions, the timings, the faces and blah blah asked by the intimidating and aggressive lawyers. If at all witnesses can be helpful in the trial of a case then on the time of writing FIR their statement should be recorded or at the first appearance of the court. But even in this situation the witnesses cannot get rid of the subsequent appearances in the court that can prolong indefinitely.
But writing of an FIR is a highly technical and legal job. It should not be entrusted to the minions of a police station. In Pakistan getting in an FIR written is a tough ordeal. The FIR is written after settlements of bribe or under the orders from the high ups. The FIR is mostly tainted, written in jumbled up Urdu language and would favor more the stronger party or wealthier parties than the weak or the victimized.
Now the police official who writes an FIR is summoned by the court and he would remain under a constant burden of being questioned by the court and the hostile counsels each time. There should be several cases for which he should be summoned when needed to put up the official outlook. Is he a computer to dish out the correct details about each case and each time?
In the face of all these stumbling blocks and irritants for dispensation of speedy and fair justice, I suggest the following corrective measures:
1. Changes should be brought about in the legal system that should encourage more litigants to use an expedited court process, as opposed to arbitration.
2. The writing of an FIR should be handed over to the trained magistrates who can have his or her office within the precincts of the police stations or an independent office adjacent to a police stations.
3. The FIR registration officer should not hesitate or defer the writing of the FIR. Even an FIR from both sides can be recorded.
4. A time frame should be fixed for every case to be adjudicated and verdict announced even if it is to be done on daily basis.
5. The condition of producing witnesses should be dropped as it does not serve the actual objective of dispensing justice because as explained above, in most case the witnesses are paid and hired to appear and briefed what to say.
6. Instead the circumstantial evidence and forensic findings should be considered enough evidence. The Witnesses are usually produced mostly in criminal cases present at the time of occurrence of crime. In case of civil suits like property, money transactions the witnesses are mentioned on the written deals. In such cases the tainted or tutored evidence fed by a lawyer may not work.
7. In case of witnesses, the parties concerned should bring them along at the time of reporting the case or on the first day in the courts. They should be questioned by the lawyers on the same day and then liberated from future appearances. The FIR or reporting center should remain round the clock.
8. We have seen in Pakistan that despite incontrovertible evidence captured in a video or Television coverage, the justice is delayed and law is not allowed to take its course. So primarily it is the mindset of the judge, the tricks of the attorneys and the faulty system that delays and determines the outcome of a case irrespective of the merits. As such strict honest and rigid ethical uprightness should be the yardstick in the appointment of judges. The review committees or the appellate courts should have the authority to criticize and even fire the judges whose conduct looks suspicious, biased or unprofessional.
9. The colonies and dirty cabins of the lawyers and sellers of the official stamps or documents around the court buildings should be disallowed. Instead of operating from the makeshift booths they should be lodged in proper offices and the court authorities should check their working conditions. The touts around the court premises should be barred from pursuing their nefarious role. The stamp papers sold by the contractors can be even counterfeit. These should be replaced by the court fees and other official charges to be directly deposited in a bank or in treasury. In America the fees are collected by at counters located within the court premises.
10. Our court buildings are rundown, broken stairs, with walls full of dirt and stains of betel nut (pan). The design of the court buildings has to be changed so that in one building all the relevant courts can be accommodated. Designs and plans of court buildings can be copied from the United States or western countries. We have seen these buildings to be immaculately organized, clean, dignified, functional elevators and the court rooms fitted with all the modern gadgets and facilities like fountains of drinking water. We can make similar set up in Pakistan.
11. It would also be in order to send out jurists and judges and other members of judiciary to witness the courts proceedings in advanced societies. There is a dire need to streamline and update our justice and judicial system in Pakistan that presently looks a mockery and negates the dispensation of unalloyed and true justice. Besides court rooms should have sitting facilities out, security and water fountains etc.
12. In one of the counties in Texas, USA I have seen around 30 courts in one building for different hearings. There is no noise or din or chaos anywhere. There is county, municipal and the immigration courts. There are no touts or people shouting at each other around the courts with broken benches and seats. There are no separate colonies for judges as we have in Pakistan. Judges live like ordinary citizens in the cities, drive their own cars and attend the courts. The judges are always in the radar or under the watch for any kind of misconduct.
13. Mobile courts and not individuals should be established to catch the culprits on the spot and award the punishment. These courts can also deal with the eradication of social evils as theft of power, adulteration, rape, cheating, false documentation, maltreatment of the citizens in the government and private departments and similar felonies. These courts can make spontaneous decisions or refer the cases to the higher courts. That would serve the imperative of swift justice and save the litigants from the big hassles and unnecessary spending.
14. The mobile courts have to be equipped with the appliances as computers and small labs for testing the adulterated food items on the spot. If swift legal action is needed then it shouldn’t be the chief justice but magistrates with a posse of police force who should make surprise visits in all the bazaars, shopping areas and restaurants to check the prices of food items and announce punishments on the spot. They can visit also the hospitals for spurious and expired drugs, used equipment etc or for unhygienic conditions or negligence by the hospital staff. The electricity and water thieves can be awarded punishment on the spot in front of the other officials touring with a judge or the magistrate.
15. The rapist and molesters should never be allowed to escape under the Hadood laws or for being influential persons. The eyewitnesses’ condition is irrelevant and unreliable. The forensic and DNA evidence can conclusively determine as to who committed the offence or the crime.
16. Even otherwise the victims, their families and the people in the area know about the culprits and perpetrators of the crime. So, on the spot all information and evidence can be obtained that takes years for the lawyers to establish and still in many cases the culprits walk away unpunished.
The writer is a senior journalist, former editor of Diplomatic Times and a former diplomat.