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).