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Judiciary & investigation

June 19, 2017

UPON independence, we inherited a functional criminal justice system (CJS) that delivered and maintained peace in the country until the late 1960s. However, as Pakistan became embroiled in regional issues, the system faltered and the country paid a heavy price in the form of the virtual annihilation of the CJS’s fundamental structure, one that had evolved over decades.

Against this backdrop, attention shifted from institution building/improvement to fulfilling the onerous responsibilities of the newly assumed role of ‘regional leader’. Every institution was sacrificed at the altar of local political expediency to the point where its purpose and function were rendered obsolete. It goes without saying that in the absence of strong institutions to control arbitrary decision-making by the government, which legitimises its actions through a questionable political process, the hope for just governance is likely to remain a chimera.

The British rulers established the structure of the CJS around the Indian Penal Code, the Code of Criminal Procedure (CrPc) and the Evidence Act, which were drafted by great minds that foresaw all possible eventualities. This vision formed an all-encompassing legal foundation for the criminal justice structure in India. Despite its colonial antecedents, it was an efficient system lasting for more than 100 years. The continuation of these laws in all the South Asian countries bears testimony to its legislative efficacy.

However, as the laws were not amended to address the evolving challenges of a changing world, the very institutions created and empowered by these laws were instead used to serve the political elite coveting regional dominance.

The role of the judicial magistrates is critical for thorough investigations and as a check on police.

This negligence in improving basic structures prefaced the breakdown of societal law and order and the fractured CJS found it difficult to deal with the emergent threat of terrorism. As a result, the government began to rely inordinately on the army in a strategy that was tantamount to firefighting without any comprehensive plan.

In this context, the National Action Plan was essentially adopted to address mounting public pressure for action. Yet even on the NAP agenda, the most vital topic of improvement of the CJS was relegated to the bottom of the 20 points. As feared, little was done to improve the system, for the outcome would have also been politically awkward.

In addition to hearing important cases against political governments in Karachi, and carrying out situation hearings and reports on the Quetta Civil Hospital bombing, the superior judiciary took note of the negligence in reforming the CJS, intervening proactively to force the executive to address the issues related to its functioning.

Undeniably, terrorism can only be confronted through an effective CJS, wherein the weakest link is the investigative process. If purged of political influence and closely monitored by the institution mandated to do so, positive results can be expected. However, no one wants to undertake this. Even the special and draconian legislation enacted in recent years has been of little help.

In this regard, a careful examination of the CrPc shows that the role of the lower judicial magistrates is critical for carrying out thorough investigations and as a check on police. This basic law has provided a delicately calibrated balance that defines the role of the magistracy in the investigation without its direct involvement in the process. In this way, it ensures the independence of the investigation.

For instance, Chapter XIV of the CrPc defines the role of the concerned magistrate by creating a fine balance of oversight and soft intervention in the process. For the investigation of a non-cognisable offence, the permission of a magistrate is mandatory under Section 155 CrPc. Section 156 (3) holds that a magistrate empowered under Section 190 can order a police officer to investigate a cognisable offence and under Section 157 it is binding for the police officer to send to the magistrate concerned a report of any information regarding the commission of a cognisable offence. Similarly, under Section 158, the investigating officer has to send the reports of every case investigated by him under Section 157 to the magistrate for his perusal.

Moreover, Section 159 empowers the magistrate to order an investigation and, if required, either proceed himself or depute a magistrate junior to him for preliminary enquiry. It is again the magistrate who has to give physical remand of an accused to the police for investigation after determining the need for extending the remand. This is a very potent tool in the hands of the magistrate for monitoring the investigation. Yet again, the closing of a case against an accused under Section 169 is subject to review by the magistrate. During the investigation, Section 164 empowers the magistrate to record the statements related to a crime or confession.

After the separation of the judiciary from the executive and the abolition of the executive magistracy, judicial magistrates are reluctant to play the proactive role provisioned in the procedural law. In the light of the worsening law and order situation and the emergence of the threat of terrorism, it is important to revert to the basics and strictly adhere to the provisions discussed above.

The higher judiciary should provide the guidelines on considering the CJS as a package that can only deliver if the functioning of its many arms is synchronised. The example of Britain in the wake of the 2011 London riots is illuminating, where the judiciary played a leading role by instituting double shifts of court hearings and punishing the offenders.

Of course, the situation in Pakistan is far more serious. That makes it even more imperative that the investigators be not only supported but also monitored in bringing the offenders to book. Responsible institutions must work together towards this goal, with the higher judiciary guaranteeing the active participation of all the players and the transparency of CJS’s functioning.

Oft-repeated recommendations for resuscitating the old system of executive magistracy as a panacea for contemporary challenges will prove futile, for it has outlived its utility and serves but to attenuate the judiciary and distort the entire criminal justice system.

The writer is a former IGP Sindh.

Published in Dawn, June 19th, 2017