ZAB reference: a time to rethink the criminal process — II

The News International
Friday, April 8, 2011

PART – 2

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 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 of 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 guarantees 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 is 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.