A long way to go By Abdul Khalique Shaikh - Wednesday 4th May 2011

Source : http://www.dawn.com/2011/05/04/a-long-way-to-go.html

IT is time to evaluate the success of the two-year-old national judicial policy in clearing the backlog of old cases, ensuring the expeditious disposal of new ones and providing justice to all. It is pertinent to ask if the measures taken for the successful implementation of the policy have been institutionalised to realise the long-term goals of access to justice or if the improvements are transient.
Admittedly, the judges have been putting in extra hours to meet the avowed objectives of the policy. However, their achievements seem to be the result of close supervision and follow-up rather than the outcome of any significant structural and procedural changes aimed at revamping the trial process in the lower courts. Despite visible improvements the situation is far from ideal. An efficient and speedy court system is yet to be established to decide cases expeditiously without the strict oversight of the higher judiciary.
The policy rightly accords priority to the disposal of criminal cases. The significance of speedy trials in criminal cases cannot be overemphasised. It is the state`s responsibility to ensure the speedy disposal of all cases so that innocent persons do not suffer from protracted proceedings. The real offenders should be punished as early as possible after a proper trial. Hindrances in this goal weaken the public`s confidence in the justice system. In fact, the system continues to be ineffective. A large number of guilty go unpunished, trials take years to conclude, and such a state of affairs can hardly deter criminals.
In order to make the justice system efficient and effective, it is necessary to eliminate the root causes of delay. Delays in the finalisation of investigations, unavailability of the defence counsel, the non-appearance of the accused and witnesses, etc., result in lingering trials. Additionally, for the most part, judges in the lower courts lack the training and capacity to effectively counter the well-entrenched culture of delay practised by parties to the case. The long-established practice of seeking and granting liberal and unquestioned adjournments render the task of speedy and inexpensive justice almost impossible to achieve.
Structural and procedural reforms are required to supplement the initiatives taken under the judicial policy. For meeting the ends of the national judicial policy, various stakeholders, including the police, prosecution, the judges and lawyers have to play their due role.
Police departments need to devise a monitoring mechanism to identify cases which remain pending beyond 17 days, the maximum period allowed for investigation under the law. This must be done with the help of especially designed computer software. The same automation can be used in connection with the process of monitoring the process, the appearance of prosecution witnesses, production of case property and other responsibilities of police officers during and before the trial.
Presiding judges have the most crucial role. Since the process begins prior to the actual trial proceedings the judges need to ensure preparedness by all parties before fixing the case for the trial. A technique successfully used in the UK involves pre-trial reviews or pre-trial hearings. The objective of a pre-trial review is to assess the readiness of a particular case for trial. Once problems are identified and solved prior to the actual trial, the latter should proceed uninterrupted and without unnecessary adjournments. Pre-trial reviews allow and encourage all parties to prepare cases adequately for an effective trial.
It is necessary to make an express provision in the Code of Criminal Procedure regarding the holding of pre-trial hearings for matters such as the admission and denial of documents, exploring the possibility of taking statements on affidavits, identifying the question of law relating to maintainability and jurisdiction and deciding the order of examination of the witnesses. The judges need to be given pre-service and in-service training in case management to enhance their understanding and capacity.
Presently, all categories of criminal cases, whether they involve minor or major offences, have to go through the same procedure and the courts. It is surprising that minor offences are not treated differently to clear the backlog and avoid delay. A long time ago, small claims and minor offences courts were created to serve as a useful forum for deciding minor offences expeditiously but these courts could not take off properly. The effective functioning of such courts can reduce the general workload.
The summary trial of minor offences is another way of speedy justice. Section 260 of the Criminal Procedure Code should be fully utilised by the magistrates to try minor cases summarily where applicable. Through necessary amendments, more and more petty offences should be included in the list to avoid expensive and time-consuming trials. Likewise, an opportunity for plea bargaining to the accused in lieu of a lighter sentence will do away with the need for long-drawn-out trials.
It has been observed that lawyers usually ask for an adjournment during the trial. This relates to important documents including copies of the FIR, witness statements, medical and chemical examiner`s reports, etc. These are either not provided to the defence or are made available just before the hearing, leaving little time for the defence to prepare itself. We need to make it mandatory for the prosecution to make an initial disclosure and continue this by amending 265-C of the Code to enlarge its the scope.
These attempts should be supported by making use of information technology to facilitate the conduct of a trial, holding trials within the jail premises for hardened criminals, enhancing penalties for frivolous and vexatious litigation, etc. These reforms should also be boosted with a corresponding increase in the supporting framework of the court`s resources. n
If measures taken in pursuance of the national judicial policy are not institutionalised the gains achieved will be short-lived. It is high time the state sought legislative amendments in procedures, introduced structural reforms, increased the number of courts and judges, built up the capacity of judges and changed the culture of protracted trials.
The writer is a barrister and DIG in Sindh Police.

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