April 17, 2014
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.
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