State and Majority Will of the People (5)

                   

In the previous parts of this article https://secondriseofislam.blogspot.com/2018/05/normal-0-false-false-false-en-us-x-none.html and https://secondriseofislam.blogspot.com/2018/05/state-and-majority-will-of-people-4.html we have seen that Pakistan’s system of justice has to be reformed to bring it in line with general and religious expectations of the people. We have discussed some deficiencies found in the system of justice and possible ways to remove those deficiencies. In the succeeding lines, we would discuss another obstacle found in the system of justice; this obstacle pertains to laws/ rules/ regulations governing the system of justice, and plays an important role in depriving the people of cheap and speedy justice. 

Unfortunately, the present system of adjudication gives too much weightage to procedures. Fair and speedy adjudication is buried somewhere, once entangled in unnecessary judicial procedures. In fact, procedures are implemented as scrupulously as laws are meant to be implemented. No doubt the procedures were devised to ensure fair adjudication, but now the procedures themselves have become a hurdle in the way of fair and speedy adjudication due to their length and complexity. These judicial procedures need to be simplified.  

Another aspect of the issue, that is pertaining to civil laws, is that procedures and laws are not separable; laws and procedures are combined while enacting  Civil Law Acts. Laws are those which contain legal notions whereas Procedures are actually a tool to implement laws but, in case of civil laws, procedures have been legislated as laws and given the status of laws. Such an unnecessary combination of laws and procedures makes the laws unduly complex. Once procedures are separated from the civil laws, the civil laws would become automatically simple. The author is not suggesting that civil laws should be completely separated from the procedures; some procedures are having such a vital importance that they should not be separated from the body of laws, but most of the procedures have been made unduly the part of laws, and it is quite feasible to separate them from the body of laws. Such a separation of procedures from civil laws would also enhance the acceptability of civil laws among the people. Most of the legal notions adopted in civil laws are in line with Islamic concepts of law, and as such can be readily accepted by the people. These are the lengthy and unnecessary procedures attached with civil laws which are giving un-Islamic color to the civil laws. Once procedures are separated from the civil laws, people would welcome the existing notions of civil laws as Islamic laws. However such civil law notions which are repugnant to Islamic concepts may be modified accordingly. The author does not think it is an easy task to separate procedures from laws; a well -focused effort is required for the purpose.

 Once procedures are separated from the civil laws, the courts may be given discretion asto how meticulously procedures are to be implemented in each individual case. SOPs may also be framed in this regard in order to avoid the possibility of misuse of discretion. It may be appreciated civil laws notions are not so many; civil laws are always based on these notions. It means, once separated from the procedures, civil laws would become automatically quite brief. In order to implement such a brief body of civil laws, we have to forego the system of adjudication we inherited from the British, in which procedures are made a part and parcel of the civil laws; instead of British system, we may adopt a system of adjudication in which procedures may be implemented only according to requirements, and may be ignored, when not necessarily required. 

We may conclude that in order to bring our state institutions in line with peoples’ general and religious aspirations, we need to reform our institutions not only structurally and procedurally but also legislatively. The objective of every system of justice is to impart justice but we are imparting injustice in the name of justice and spending annually billions of rupees for a failed cause. If we can reform our justice system by spending more on it so that it is enabled to meet the very objective it was established for, nothing would be better than it.

State and Majority Will of the People (4)

                        

In part (3) of this article https://secondriseofislam.blogspot.com/2018/05/normal-0-false-false-false-en-us-x-none.html we have seen that increase in number of judges is necessary and basic requirement to bring Judiciary in line with peoples’ expectations. In this part of the article, we would discuss  how Police and Prosecution may be reformed.

Police is the first agency dealing with investigation. One is bound to be  surprised  that investigation has been left at the mercy of a grade 14 junior police officer called sub-inspector which is not essentially well trained in investigation because there is every possibility that most of experience of such investigation officer is relating to maintenance of law & order, instead of investigation. Because police is the first agency entrusted with investigation, many loopholes left in the investigation cannot be rectified at latter stages by the prosecution; many loopholes particularly pertaining to collection of evidence and forensic evidence which can be collected only at the time of occurrence of event/ crime, cannot be rectified latter when the case is sent to prosecution. It may also be appreciated that, presently, prosecution has limited power to restrain an investigation officer from committing blunders in investigation; for instance, the prosecutor can point out deficient evidence found in the investigation but a prosecutor cannot lead the investigation officer asto what kind of evidence should be procured. Keeping in view, wide powers invested in the investigation officer, the importance of reformed investigation process in the whole system of justice cannot be over-emphasized. Reformed investigation process is also important in another way. Actually loopholes left in the investigation are cashed on by incompetent and corrupt prosecutors and judges. The system of justice cannot be made corruption free without reforming investigation process.

In order to reform investigation process, a few things may be considered.

Firstly, investigation officers/ officials may be made a separate and specialized cadre. The investigation officers/ officials should not be transferable to law & order wing of police, and law & order officers/officials should not be transferable to investigation wing. The investigation wing should be made an elite wing of the police, in terms of pay and perks. The investigation of important cases may be entrusted to only senior officers. Special training programs may be initiated to equip investigation wing with advance skills of investigation. The investigation wing may be staffed preferably with  law graduates; in order to overcome shortage of law graduates, short law courses may be initiated in public and private sector universities/ colleges so that investigation officers/officials may be equipped with necessary legal knowledge. 

Secondly, the investigation officers should be made practically liable for defective investigation; presently, investigation officers are bold enough to conduct wrong investigation because ratio of punitive action against such investigation officers is almost zero.  For the purpose, a scoring system may be introduced. Every investigated case by every individual investigation officer should be allotted a score by the respective trial judge. The average score obtained by every individual investigation officer may be considered at the time of promotion of that officer; an officer obtaining lesser than a specified average score may be declared incapable of carrying on further the job of investigation; and such incapable investigation officer may be shifted to some other job in other wings of the police department. The author is not suggesting that whole performance of an investigation officer should be considered on the basis of scores allotted by the respective trial judge; but the score allotted by the judge should be made a substantial portion of overall performance evaluation of an investigation officer.  It may be appreciated such an accountability system may not be put in place without developing a software for performance evaluation of the investigation officers; such a software system has to be mutually used by the investigation wing and the subordinate judiciary. 

Thirdly, the investigation officials/ officers dealing with collection of forensic evidence should be a separate group within the investigation wing, and this group should be specially trained in skills of collection of forensic evidence.

Fourthly, we may forego ideal separation of powers and authorize respective judge of subordinate judiciary to supervise the investigation process. The ideal separation of power does not exist anywhere in the world; we should not sacrifice our system of justice on the altar of an ideal which does not exist anywhere. The present number of judges, being already over-burdened, cannot perform this supervisory role; but after the number of judges is increased by five or six times, it would be possible for the judges to perform this supervisory role. This supervisory role of the judge may be limited to ensuring that all possible relevant evidence is collected; the judge would not be creating an evidence; he would be only helping in collecting the relevant evidence. Such a supervisory role of judiciary does not run counter to any concept of justice. As the supervisory judge would be belonging to the lowest tier of the subordinate judiciary, if he does not work fairly, he may be held responsible by the higher tiers of judiciary. Such a check and balance would make the investigation officer as well as the supervisory judge work with utmost diligence and efficiency. Fair investigation is of utmost important because the courts do not remove the defects of investigation; rather they decide the cases on the basis of defects of investigation. In this way, whole system of justice becomes a hostage of defects created by an incompetent or corrupt investigation officer. The system of justice cannot be reformed effectively without reforming investigation process. If investigation process may be reformed by altering the present system of separation of power, nothing would be better than it. Moreover, the present system of separation of power –adopted in present system of justice- is not in line with justice system we find  in Islamic history. In Islamic history, we find that ‘Qazi’ was authorized to collect evidence on his own. In other words, if judge of subordinate judiciary is entrusted with supervisory role of investigation process, such a reformation would be not only in line with Islamic practice but also create a check and balance for the investigation officer and the judge to conduct fair investigation and trial respectively.

The prosecution system also has to be reformed. The proposed supervisory role of subordinate judiciary for investigation officers may also be adopted for supervision of prosecutors’ performance. Similarly the proposed scoring system adopted through subordinate judiciary for performance evaluation of investigation officers may also be adopted for prosecutors. The proposed performance evaluation software developed for the investigation officers may also be adopted for performance evaluation of prosecutors. In other words, a joint performance evaluation software system may be developed for investigation officers and for prosecutors, and such software system has to be mutually used by subordinate judiciary, investigation wing and prosecution department. The proposed performance evaluation system may cover all aspects of performance of investigation officers and prosecutors, and also help in removing the shortcomings/deficiencies found in the performance of investigation officers and prosecutors (for details pls see https://secondriseofislam.blogspot.com/2014/10/an-outline-of-comprehensive-plan-for.html and https://secondriseofislam.blogspot.com/2015/03/training-need-assessment-based-on-kpis_6.html and https://secondriseofislam.blogspot.com/2014/09/kpis-for-public-prosecution-department.html.

We may conclude that investigation process and prosecution have to be reformed in order to bring system of justice in line with peoples’ general and religious aspiration (continued).

State and Majority Will of the People (3)

                             

  

We have already seen in parts (1) & (2) of this article https://secondriseofislam.blogspot.com/2017/10/state-and-majority-will-of-people.html and   https://secondriseofislam.blogspot.com/2017/10/state-and-majority-will-of-people-2.html    that state is a collection of state institutions. State institutions are those vested with legal power; non-state institutions (social institutions) are not vested with legal power. In other words, society is a larger organization than the state; society contains both state and non-state institutions. State and non-state institutions are second name of majority will of the people. It is majority Muslims’ implicit will which approves creation of all state and non-state institutions as every individual of the approving majority has not participated in the creation of those state or non-state institutions. Actually Implicit Will of the people is what is practically shown by the people impliedly (Implicit Will is that is shown silently but practically) : peoples’ desires which are not practically manifested are not peoples' implicit will. That is why peoples' implicit will may also be formed through force as well; a state may be formed forcibly as well, but cannot be established without implicit will of the people. 

As state or non-state institutions survive on the peoples’ active or implied support, in order to enable state or non-state institutions to avail full peoples’ support, such institutions should be in conformity with the peoples’ aspiration so that people/Muslims may protect such institutions from dictatorship of the government. In order to make state or non-state institutions strong ones in an Islamic state/society, such institutions have to be in conformity with religious aspirations of the Muslims. 

In line with foregoing, we have seen in part (2) how economic system in Muslim societies and in Pakistan may be made ‘interest free’. In the succeeding lines we would see how justice system in Pakistan may be modified and developed in lines with peoples’ general and religious aspirations.

Justice system in Pakistan may be broadly divided into three departments: police, prosecution, and judiciary. But the problems pertaining to justice system are relating to legislation as well in addition to these three departments.

In judiciary, we find practical manifestation of proverb “justice delayed is justice denied”. The main reason is acute shortage of judges. Our courts are over-burdened.  According to the Law and Justice Commission of Pakistan (LJCP), upto 2017, there are 38,539 cases pending with the SC, 293,947 with the five high courts and 1,869,886 cases with the subordinate judiciary of the four provinces and the federal capital. In all we have more than 2.2 m cases pending in the courts. The cases pending in special courts like Anti-Corruption Courts, Banking Courts, Labour Courts etc. are not included in this number. The judges, due to shortage of their number, cannot dispose of this huge backlog. Moreover, being over-burdened, the judges cannot hear the cases sufficiently; as a result quality of justice in decided cases is also compromised. Even more worrisome aspect of this problem is that the number of pending cases is increasing at greater pace. In 2009, total pendency stood at 1.6 m; in 2014, at 1.75 m; but in 2017, total pendency stood at 2.2 m and pending cases at special courts are not included in this number. Actually, pendency in first four years (2010-2013-both years inclusive) increased by 0.15 m but in next four years (2014-2017- both years inclusive) increased by 0.45 m. This increasing rate of pendency exists even after increasing rate of disposal by the courts.  For example, the Punjab district courts in 2014 disposed of 1,885,534 cases but received 2,037,110 fresh cases to be decided. Another example is the Lahore High Court which in 2014 disposed of 152,776 cases but there were 144,422 new ones instituted. It can be foreseen, if increasing rate of pendency is not checked, it would become an intractable problem in coming years.

This problem of pending cases is caused by multi-dimensional reasons. But the basic reason is shortage of judges; no solution can be effective without increasing number of judges. . In developed countries, there is one judge to about every ten thousand persons; but in Pakistan we have one judge to about every sixty thousand persons or even more persons as per other estimates. We have to increase number of judges at all hierarchies of Judiciary. Presently we are spending billions of rupees to deliver injustice in the name of justice. If we can deliver justice by enhancing spending five or six times by increasing number of judges five or six times, nothing would be better than it. In order to open blockade to promotion in subordinate Judiciary, new tiers in subordinate Judiciary may be established between Civil Judges tier and District Judges tier, and between District Judges tier and High Courts tier. A judge for every one or two union council/s along-with jury consisting of local notables may go a long way to deliver cheap and speedy justice.

The Punjab Judiciary is in more need to enhance number of judges, particularly in subordinate Judiciary. By breaking up total pendency in 2017 at lower Judiciary, we find Punjab has most number of pending cases. The pendency with the district judiciary of Punjab is 1,184,551, Sindh 97,673, Khyber Pakhtunkhwa 204,030, Balochistan 12,826 and Islamabad 37,753. We can see pendency with Punjab’s subordinate judiciary is above  three times more than the pendency in other three provinces combined. Punjab needs to enhance number of judges  more urgently than other provinces.

Another aspect of shortage of judges is that judges, being over-burdened, cannot adjudicate cases sufficiently and as a result quality of justice is compromised in decided cases as well. Regarding this issue, we may work out percentage of various categories of instituted and decided cases, and reasons of most acquittals pertaining to various categories. Such a data may help us in devising informed policy asto which categories of cases should be allocated more judges. Such a data may also help us in providing an insight and devising informed policies accordingly asto various reasons of acquittal in various categories of decided cases. Resultantly we can remove negative reasons of acquittals including shortage of judges, defective investigation, defective prosecution and defective adjudication.

Speedy and cheap justice is one of the most cherished general and religious aspiration of Pakistan’s people. The present system of justice would not have backing and active support of the people unless and until this system of justice comes up to the general and religious expectations and aspirations of the people. Increasing the number of judges and adding new tiers in Judiciary, particularly in the subordinate judiciary, is the need of the hour, to bring Judiciary in conformity with peoples' aspirations   (continued).