One of the many tasks that PTI government had taken to head was reformation of the criminal legal system. Farogh Naseem undertook a three year exercise to accomplish this behemoth task. When the draft copy of the amendments was publicly shared, the same received immense flak for being a cosmic exercise over a law that required major overhaul. A more embarrassing denigration was of plagiarism. Majority of the amendments were complete “copy-paste” from Indian criminal law amendments. Without delving into the merits of the same, just the idea of how reform process was carried out by the top legal mind was ironical.
Now that the new boss has taken charge, Farogh’s reforms have hit a snag. While it can be predicted that Farogh’s reforms will be brushed aside for political reasons, there shall be no denying that reformation of our criminal legal system is critical no matter who occupies the office. The new man in charge, Azam Nazir Tarar is a seasoned lawyer of Punjab and would understand the gravity of the situation. He has also served as Vice chairman of the Pakistan Bar Council, the highest elected body of lawyers in Pakistan. Tarar brings more credibility to the law ministry which is a sine quo non for any major reform process acceptable to the bar and to the judiciary. Former Law Minister, though a successful lawyer, was not a man liked by his colleagues. The reference of Justice Isa had further eroded his credibility. His major constituency of lawyers was up in arms against him.
The system is crippled and it needs a major shake-up. Moreover, reforming the system would be a tremendous feat for the incumbent government which is already under pressure to show immediate results. Eventually elections would be announced. The government would need a convincing narrative to win electoral vote bank. The ideal choice of large infrastructure projects won’t be available for paucity of funds and lack of time. Law amendments would not only give them credibility as a neutral government but also win them more votes. Moreover, amendments in law come cheap compared to orange lines, dams or motorways. Amending the legal system can gain valuable support from the media, lawyers, judiciary, civil society, think-tanks and most importantly, the litigants who number in thousands.
There are few areas in the criminal legal system that would require immediate attention of the new worthy law minister. First and foremost is the pendency of cases before all courts of Pakistan. The delay can be attributed to our flimsy structure of long adjournments by lawyers and judges, frequent transfer of judges, lack of case management system and delay in filing of Challans by Police. Presently, out of 81,000 prisoners only 21,000 are convicted. The rest await trial or are victims of a painfully slow and decaying criminal legal system. Considering that the new Law Minister has a voice within the legal fraternity, reforms which require change of behavioral attitude of lawyers would have chances to break through. Moreover, the law minister’s good repute within the judiciary may also imply that judiciary would be receptive to the idea of taking the bull by the horns i.e. reforming itself.
Another important aspect requiring reform would be the misuse of power of arrest by the law enforcement agencies and the provision of bail by the judiciary. The entire concept of arrest without warrant would have to be rethought to put more checks and balances against the LEAs against arresting accused without formidable evidences or charges.
Structural improvements and reforms would be required within the judicial structure of Pakistan. Currently, there is a singular stream within the judiciary of Pakistan. A person aspiring to be a criminal judge has to be tested in the field of civil law and might be given the portfolio of civil judge in the future. It is imperative that criminal judiciary is made wholly independent of the civil judiciary and an independent Session Judge is appointed for every District who oversees the criminal judiciary and criminal cases in the District. Currently the District Judge is also given the additional portfolio of Session i.e. criminal matters. Once the criminal judiciary is made independent, focus can be put on training of judges in the field of criminal law which would include forensics, ballistics, medico-legal and law of evidence.
Another important aspect requiring reform would be the misuse of power of arrest by the law enforcement agencies and the provision of bail by the judiciary. The entire concept of arrest without warrant would have to be rethought to put more checks and balances against the LEAs against arresting accused without formidable evidences or charges. Currently, only on the basis suspicion police can arrest any individual and seek remand. Seeking remand by Police shall be limited to recovery of any incriminating evidence rather than recording a statement from the accused which in most of the cases is rejected for being given under duress.
Lastly and most importantly, the concept of justice of peace must be restored to its original position and linked with the public safety commissions which have so far not been made operational. Historically, Justice of peace having the powers of arrest, bail, issue search warrants and hear habeas petitions was appointed or elected from the citizens of the areas in which they would serve and were usually not required any formal legal education. A justice of peace is typically someone of a good statute in the community who has roots in the same community. By giving the powers of Justice of Peace to the Session Judge has made the reason d’etre of having one almost negligible.
A Session Judge has no nexus with the community where he serves. In most cases, he/she does not even belong to that community. He has to be approached through a lawyer within the realm of our criminal legal system. This formal legal landscape attached to the Justice of Peace becomes a barrier for the community for resolution of grievances against police abuse. Justice of peace can be an elected community elder with a good stature and easily approachable for the community where he serves. Or, the public safety commissions can be reactivated and given equivalent powers of justice of peace.
