The frustration and anger expressed by netizens on the slow pace of Zahir Jaffer’s trial for the murder of Noor Mukaddam is justified. With all the media attention and the Government’s full support, the case still lags behind the timeline of two months granted by the Islamabad High court to wrap up the trial. Leaving aside the visible legal lacunae reflecting the sheer ineptitude and incompetency of our investigation agencies, the case also demonstrates the crumbling criminal legal system of Pakistan. There is no denying that the journey of registration of a criminal case (First Information Report) to conviction of an accused is a rollercoaster ride.
Successive governments have floundered in reforming our criminal system. All stakeholders are to be blamed. A system that works well for everyone’s pockets bids better; except for the litigants who are pushed to the wall to an extent that they either opt for an out-of-court settlement or stop demanding justice. The case of Usman Mirza, accused of forcing a couple to have intercourse and taping it, wherein the victims refused to pursue the case, is a good illustration of how a broken system affects the victims. Look at the irony that despite unshakable video evidence, the victims opted to give an affidavit refusing to recognize any of the accused.
When the Taliban captured Swat, the biggest dilemma for the State was Nizam-e-Adl. The locals favoured the new legal system of the Taliban as compared with the ordinary criminal courts. The reason being that Nizam-e-Adl was a complete departure from the old system and it gave hope to the locals that their grievances would not be stuck in a quagmire the way it is being stuck today. Similar is the case of Panchayats and Jirgas which triumph over the ordinary criminal courts in villages for resolution of disputes
Our Law Minister has now taken the charge of reforming the criminal law. A thumping ceremony was held attended by the Prime Minister, where the Law Minister proudly demonstrated his “700 amendments” terming it as a “defining moment” in the country’s history. Leaving aside his civil law reform exercise that fell as a house of cards, there is all likelihood that the criminal law reform’s fate would not be very different. The Bar Councils and legal fraternity have already rejected them with SCBA President Ahsan Boon stating that the Law Minister has “effectively demonstrated his inability, as well as the lack of capacity in his team.”
The majority of the proposed amendments are completely identical to the amendments made by India in their criminal legal system. Though a three-year reforming programme at such a high level should have been bigger than merely hunting the opponents, India was not even a good example to follow. The Indian criminal system is besieged with its own problems with a conviction rate as low as 20 percent. Nonetheless, India’s reform agenda has fallen in the same trap as the Law Minister’s. The exercise seems to have been a patchwork rather than shaking the very foundation upon which a dilapidated structure stands.
Cosmetic and paper amendments without a calculated impact, cost and feasibility analysis, will not help much. It will only add to problems and increase the already painful lawyers of processes a litigant has to go through. Just to give an example, proposing strict timelines in disposal of cases has never been a workable solution. The proposed criminal law amendment proposes nine months timeline for conclusion of a trial. Islamabad High Court through its appeal policy had also notified nine months timeline for disposal of appeals. Yet, the same court itself now has been violating its policy in the case of Nawaz Sharif’s appeal which has been pending for three years now.
The proposed amendments introduce modern ways of recording evidence through electronic audio-video means. A similar amendment was introduced in NAB law for recording of evidence. Accountability judges throughout Pakistan expressed inability to comply with the law and to proceed with the references without installation of audio-video recording equipment in the courts. The law ministry was quick to ask accountability courts to follow the previous procedure until the government procures necessary gadgets. In the end it only became a futile exercise.
Such cosmic amendments can never build a broken system. The conceptual elements upon which the entire edifice of procedural law is built have to be re-thought and re-analyzed. A doctor, rather than doubling the dose of medicine which has no effect on the body, would rather change the dose, effectively changing the formula of the medicine. Such an approach is required for criminal reforms which would include questioning the very notions such as concept of bail, arrest, warrants, cognizable and non-cognizable offences, challans, sureties, bonds, and so on.
Why is the onus on the detained person to apply for bail and prove to the court that the arrest is unwarranted? Why are the police not duty-bound in all kinds of offences to prove to the court that certain conditions are fulfilled for curtailing the liberty of a person? Why is the threshold of “beyond reasonable doubt” applied in criminal cases when our investigation and prosecution is weak enough to leave evidence dented? Should we move to a lighter threshold or make the balance of probability the yardstick? Would Islamic concepts of criminal law bid better or should we adopt the jury system of the USA?
Such questions, debates and analytical thinking are required for any reformative exercise. Adding layers to an already complex system of processes and procedures would only add misery for the litigants. The original Code of Criminal Procedure was above 400 sections. The amendments have included 700 new sections in the law now. How is this a smart way of dealing with an already complex procedural code?
When the Taliban captured Swat, the biggest dilemma for the State was Nizam-e-Adl. The locals favoured the new legal system of the Taliban as compared with the ordinary criminal courts. The reason being that Nizam-e-Adl was a complete departure from the old system and it gave hope to the locals that their grievances would not be stuck in a quagmire the way it is being stuck today. Similar is the case of Panchayats and Jirgas which triumph over the ordinary criminal courts in villages for resolution of disputes.
