Criminal Justice System; Should it be revisited?

The Nation, Islamabad
Friday, December 16, 2011

On Monday the 12th of December, 2011 an eleven-member Bench of the Hon’ble Supreme Court has issued notice to Nawabzada Ahmed Raza Khan Qasuri, as a complainant in the murder case of his father Nawab Mohammad Ahmed Khan wherein former Prime Minister of Pakistan and one of the most charismatic contemporary leader was tried, convicted and executed on 4th of April, 1979.

This case has been marred by various controversies from the very outset of its trial leading to the conviction and the execution.

This reference was filed on the eve of the 32nd death anniversary of Late Zulfiqar Ali Bhutto on 4th April 2011, the PPP Government, at the initiative of President Asif Ali Zardari, decided to send a belated, almost three years after coming into power, a Reference under Article 186 of the Constitution of Pakistan to the Supreme Court for reconsideration and revisiting of the death sentence awarded to the legendary leader, Zulfiqar Ali Bhutto.

Article 186 of the Constitution, which deals with the advisory jurisdiction of the apex court, states: “If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration. The Supreme Court shall consider a question so referred and report its opinion on the question to the President.”

 The Government’s bold effort is laudable but there is no guarantee that its action is likely to produce the desired result. A mere opinion of the Court is not likely to do full justice to the deceased, his family, friends, and followers. The Government should instead opt for a more efficacious remedy by promulgating a law under Article 188 of the Constitution, which would empower the Supreme Court to review its ill-fated decision: Article 188 provides: “The Supreme Court shall have power, subject to the provisions of any Act of Majlis-e-Shoora (Parliament) and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it.”

The proposed law would cater for such eventualities where unlawful convictions could be set aside by the Supreme Court. Resultantly, the system of Administration of Criminal Justice would ensure that no innocent person is sent to the gallows. Under the present dispensation, if the Supreme Court dismisses a Review Petition against conviction, there is no remedy left behind for redressal of a wrongful judgment. It is my experience as a practicing lawyer nearly for four decades that hundreds of innocent people are sent to gallows because of maladministration of the criminal justice system in the country. This starts from the initial police investigation, where there is a general trend of roping in of every able-bodied member of the family of the accused in case of manslaughter or culpable homicide amounting to murder.

Although the multi-layered court process makes every effort to separate the innocent from the guilty by sifting the grain from the chaff, because of the absence of lack of proper tools of investigation, including DNA tests and forensic examinations, the rate of wrongful convictions continues to be quite high in Pakistan. If we look at the contemporary world, the death penalty has been abolished in many countries primarily because of the danger of wrongful convictions.

In England, whose legal legacy we have inherited in Pakistan, the death penalty for murder has been abolished, because of the realization that wrongful convictions and executions do inevitably take place.

The last death sentence in England was awarded to David Chapman at Leeds who was subsequently reprieved and his sentence converted to life in prison.  On 8th of November 1965, an Act was passed which effectively abolished capital punishment.  From 16th to 18th December in 1969, the House of Commons and the House of Lords respectively confirmed abolition of capital punishment for murder.  As such, Peter A. Allen at Walton Prison Liverpool and Gwynne Owen Evans at Strangeways Prison Manchester became the last individuals to be hanged for manslaughter in the United Kingdom.

In this article, we are not laying the case for the abolition of the death penalty but the focus is on wrongful convictions which have been defined as a failure of the justice system in most fundamental sense whereby an innocent person has been erroneously convicted of a crime that he or she did not commit. In many instances, this has resulted in long and difficult years of incarceration and subsequent execution.

No matter how many cases are successfully prosecuted in our courtrooms, wrongful convictions regardless of how infrequent, are a reminder of the fallibility of the justice system and a stain on its well deserved positive reputation.

Public confidence in the administration of justice is fostered by demonstrating that participants in the criminal justice system are willing to take action to prevent future miscarriage of justice.  It is also important to foster a public understanding that fair, independent and impartial police investigations and prosecutions of such offences by the respective agencies of Province or Federation are in the public interest.

When miscarriage of justice occurs it is not usually the result of one mistake but rather a combination of events. Therefore, just as the problem and error being multi-faceted so too must the solution and rectification be multi-dimensional. The responsibility to prevent wrongful convictions, therefore, falls on all participants in the criminal justice system i.e. police officers, prosecution counsels, forensic scientists, judges, defence counsels, and the complainant.

All have a role to play in ensuring that innocent people are not convicted of crimes they did not commit.  Furthermore, this is an issue that does not touch one Province or jurisdiction alone. The goal of all participants in the justice system must be to prevent wrongful convictions occurring in the first place.  Unfortunately, based on individual surveys conducted every now and then, it is alarming to note that the rate of convictions in Pakistan exceeds far beyond a country that has inherited a legal system which if pursued with sincerity and devotion provides an infrastructure for minimizing such misfortunes. The risk of error exists almost in any human endeavour. In any justice system, the consequences of a wrongful conviction can be tragic. Sending a person who commits an offence to prison, along with all able-bodied members of his family particularly those who can pursue the investigation and ultimately the case, is as much a crime as the original crime itself. In the absence of any Social Security System or guarantee whatsoever both families i.e. of an accused and the deceased are generally seen to be totally devastated as a result of the crime.

In the global context, more than 57 countries have devised systems and have brought about legislative enactments including Special Appeal Procedures for post-wrongful convictions. Consequently, on the satisfaction of their Boards constituted by each country as fresh evidence comes to light, the courts can reopen the case under the legislative dispensation and reverse their judgments rendered, no matter how many years have elapsed.

As far back as in 1912, an article was published by Edwin M. Bouchard, then a young Law Librarian of the Congress titled “State indemnity for errors of criminal justice” accompanied by an editorial by Prof. John H. Wigmore, the then Dean of North-Western University School of Law. Bouchard’s article was published by the United States Government and forms a permanent Senate document in the United States.  In his introductory editorial, he asserted: “The State is apt to be indifferent and heartless when its own wrongdoings and blunders are to be redressed. The reason lies partly in the difficulties of providing proper remedy and partly in the principle that individual sacrifices must often be borne for the public good”.

Nevertheless, one such glaring instance of such heartlessness not excusable on any grounds is the State’s failure to compensate those who have been erroneously condemned for a crime. Having subjected the citizen to meritless allegations, Prof. Wigmore suggested that the State should at least try to compensate for the wrongdoings done:To deprive a man of liberty, put him to a heavy expense in defending himself and to cut off his power to earn a living perhaps also to exact money fined – these are sacrifices which the State imposes on him for the public purpose of punishing crime and when it is found that he incurred the sacrifice through no demerit of his own, that he was innocent, then should not the State at least compensate him so far as money can do.”

Prof. Wigmore was so much moved by Bouchard’s article and the thought process ignited thereby that in 1932 he published his own study about wrongful convictions.  Subsequently, Judge Frank of the US Court of Appeals published a book entitled “Not Guilty” in 1957 and, thereafter, there have been numerous studies by University Professors and Judges prompting the US Congress to pass a legislation called “Innocent Protection Act” which, inter alia, establishes rules and procedures governing applications for DNA testing by inmates in the Federal System and exoneration of the innocent through DNA testing. 123 persons on death row were released from 25 States between 1973 and 2005 in the U.S.A.

In our neighboring country India, which has similar constitutional and legal provisions like ours, the Supreme Court exercises a jurisdiction known as curative jurisdiction, after all the remedies including review are exhausted to address this issue of wrongful conviction.

A curative petition is required to be circulated to a bench of the three senior-most judges and the judge/judges who has/have passed the final judgment, if available. The curative petition may be entertained if the majority of judges conclude that there was a miscarriage of justice.

The Indian Supreme Court in Rupa Ashok Hurra case ‘2002 – 4 SCC 338’ held that a petitioner was entitled to relief if he established violation of principles of natural justice in that he was not a party to the dispute, but the judgment adversely affected his interests or if he was a party to the dispute but was not served with notice and the case proceeded as if he had noticed. Also where in the proceedings, a judge failed to disclose his connection with the subject matter or the parties gave rise to an apprehension of bias and the judgment adversely affected the petitioner. Reaffirming that a final order of the apex court could not be assailed, the Bench sought to cure a gross miscarriage of justice on the basis that it could reconsider its judgments in the exercise of its inherent power.

According to the judgment, a curative Petition should contain a certification by a Senior Advocate regarding the fulfillment of the requirements. Justice Banerjee in his concurring judgment has, however, written that curative Petitions ought to be treated as a rarity rather than regular. Justice Quadri stated in the order that the Petitioner in the curative Petition should aver specifically that the grounds mentioned therein had been taken in the review Petition and that it was dismissed by circulation. The judgment also states that it shall be open to the Bench at any stage of consideration of the curative Petition to ask a Senior Counsel to assist it as Amicus Curiae (friend of the Court).

The founding fathers of the Pakistan Constitution, 1973 provided Article 188 for the purpose. The Supreme Court of Pakistan was accordingly empowered to review any judgment pronounced or any order made by it subject to any parliamentary enactment and any rules made by the Supreme Court in respect thereof.

A bare reading of this Article indicates that Parliament can pass an Act to, inter alia, provide different eventualities for the exercise of the power of judicial review by the Supreme Court to foster justice. It can only be termed tragic that, despite lapse of 38 years of the framing of the Constitution, the Parliament has not exercised the authority granted to it by the founding fathers to make a law subject to which Supreme Court could exercise its jurisdiction and power to revisit cases of miscarriage of justice under Article 188.

The Government instead of filing a reference through President Zardari, on the 32nd Anniversary of late Zulfiqar Ali Bhutto, could have taken a more prudent step by the Prime Minister advising the President to promulgate an Ordinance (if Parliament was not in session) or Act catering for different situations and angles, addressing the issues of wrongful conviction, and for re-opening of cases on discovery of new evidence or if there was manifest miscarriage of justice.

This exercise would have benefited all the people of Pakistan, which seemingly, is not the concern of President Zardari or his Government. One could safely refer to the budgetary provisions allocated for the “administration of justice” including investigations, its forensic support, and DNA testing or catering for any other exploratory requirements, that result in the physical custody of most of innocent and resource-less accused persons. If some NGO undertakes to collect data as to how many rich and influential persons have experienced life in prison as an undertrial prisoner or as a convict, it would throw an illuminating light in understanding the priority of successive Governments and their lack of impetus to assist the common man.

We are living in an era of information technology. Accused persons can be spotted, inter alia, by cellular and satellite technology, but unfortunately, we frequently read in the press that our police does not even have adequate funds for the provision of paper to write complaints on.

There are numerous examples of ‘posthumous acquittals’ the world over. Greek courts convicted three former prime ministers when it lost to Turkey, but 90 years later, on a formal application of one of the legal heirs, the court acquitted them posthumously. In Romania too, their Prime Minister who sided with German Nazis was sentenced to death when Red Army conquered Romania in 1944, but recently, on the application of his grandson, upon pointing out the flaws in the original judgment and after proper hearing, the Romanian court overturned the conviction.

And of course, because of the development of new evidence verification techniques such as DNA testing, on the application of heirs of convicted persons, the courts have ‘posthumously acquitted’ many people. And it was ONLY because the number of applicants grew so large that the government had to set up a commission to examine each application to see which contained merit and which did not.

Rule of law guarantees a stable democracy and offers a solution to multiple problems which a Government may face, particularly when confronting threats of militancy and terrorism. A strong investigative, prosecutorial, and judicial system is sine-qua-non for guaranteeing better law and order situation in any country. The ultimate guarantee to a citizen has been provided by the Constitution vide Article 4 which extends the protection of law to all citizens regardless of their territorial or geographical placing. The citizens need to have unshakeable confidence at the end of the day that the State is protecting their rights and that no matter what eventuality arises their rights will be protected. This, in turn, will embed patriotism into the hearts and minds of all the citizens but contrary to this ideal the citizens, in addition to economic disaster, have lurking fear of abduction, target killings and consequently of investigation, trials, and wrongful convictions. Their bond with their motherland cannot retain the strength which the rigors of the present day require. It is high time that the rulers particularly those voted to power should resolve to give up their political gimmicks and start putting their house in order. As the wise saying goes: nations can survive on infidelity but not without justice.