Jun 10, 2021

The Crippling State of Public Prosecution

 The competent prosecution of criminal offences is a fundamental term of our social contract. The state investigates, arms the prosecutor, determines and provides the venue for litigation and hands down the sentence to the guilty. In return, citizens are entitled to expect that criminal prosecutions are properly financed and capably litigated. However, the reality bears no correlation to the fundamental terms of our social contract.

Pakistan’s legal system is a derivative of the English legal system. However, unlike the latter, the legal system in Pakistan is confronted with an array of problems. A look into our legal framework reflects that the prosecution department is not delivering its full potential. Is it because of the deprivation of funds or shortage of staff? We shall examine the factors that contribute to this underperformance through the course of this article.

Until a few years ago, all prosecutions in the High Courts were conducted by the Advocate General’s office. It eventually separated itself from criminal prosecutions when the Punjab Criminal Prosecution department was launched. Administering justice with a designated department to cater to criminal prosecutions was a plausible move indeed. However, the department has been struggling to uphold its true purpose and has not been able to come out of the woods yet.

Before homing in to the glitches within the prosecution department, it is important to bear in mind that it is a government establishment. The deprivation of funds have had some serious implications over the performance of public prosecutors trying to establish the guilt of the accused. It would be fair to comment that these financial implications have left the department in a crippling state. Low levels of motivation, accompanied by a lack of appropriate infrastructure and lack of an extensive variety of books and law resources have contributed dearly to the cause. On the other hand, the defense counsel (who are privately funded) have access to a wide range of facilities, ensuring that they will always have an upper hand over public prosecutors unless things change drastically. The current financial situation of public prosecutors also makes them susceptible to gain finances through illegal means.

The Punjab government needs to rescue public prosecutors from this pretense by enacting legislation which introduces a minimum level of remuneration, incentives and bonuses for public prosecutors. Public prosecutors should also be given access to a broad range of legal materials, including law journals, books, electronic databases and online legal research portals so that their case preparation does not fall short while facing their opponents.

The work ethic cultivated over the years can be enhanced if public prosecutors are not burdened with unwarranted backlash and caseload. At times they fall victim to their own success and at other times public pressure puts a veil on their accomplishments. An alteration in the reform agenda could prove to be valuable in uplifting the morale of public prosecutors. Any fiasco in securing a conviction should be made answerable to the government rather than the aggrieved party, irrespective of the vulnerability of the parties or their trying circumstances.

Another feature of prosecution is that the task of prosecution is assigned by the state and prosecutors appear on behalf of the state in terrorism courts, narcotics courts and magistrates’ courts, to name a few. When prosecuting cases involving crime, prosecutors also put their lives in jeopardy in order to secure convictions in such cases. So it is the duty of the state to protect its civil servants and not leave them stranded. Public policy should reflect the necessary protection afforded to public prosecutors, such as by concealing the identity of the prosecutor in terrorism courts and providing armed security when such cases are going on.

The Punjab Criminal Prosecution Service Act 2006 provides a prosecutor with the power to sum up a case whenever the accused pleads guilty. Pragmatically, this could prove to be challenging. Judicial and extra judicial confessions tend to be retracted once a prisoner under trial becomes more familiarized with the shortcomings of the legal system. Taking inspiration from other jurisdictions, the concept of a plea bargain can be introduced which acts as a filtering mechanism to decide whether cases should be placed on trial. Furnishing the concept of plea bargain within already complicated criminal trials will result in a drop in unnecessary trials and perpetuate justice.

Let’s analyze some of the other provisions of the enacted statute and potential reforms. Scrutinization of police reports will only cause delays in procedure if a report is still in the pipeline before being presented to the prosecutor. It may be necessary for the government to revise this provision as the process of scrutiny will only contribute to more red-tape during ongoing criminal litigation. The introduction of crime scene photography can also aid in securing reliable prosecution. The system is still functioning on conventional methods of manual administration. This deficit can be curtailed by the introduction of electronic procedures which will significantly save time.

Cases like Iram Asif vs Abbas Ali show that a private complaint can be filed by a petitioner who is dissatisfied with police investigation. The true rationale of public prosecution can only be achieved if a viable connection can be formed between the police and public prosecutors. Unnecessary delays between trial and investigation inevitably favour the accused, lead to the prosecution committing more errors such as losing key witnesses and evidence, and make the complainant eventually lose faith in the system. The system can only be streamlined by liaising with the police. Effective and transparent investigation would pave the way for safe convictions, less caseload and just trials. Methodical investigation, gathering of evidence and written statements from key witnesses are essential ingredients for prosecuting a seasoned criminal. Cohesion and collaboration between the police and prosecution, two independent departments, will thwart all criminals who exploit procedural errors. Instilling principles and determination within the police department will also elevate the value of public prosecutions. Despite their peculiar circumstances, public prosecutors are on the frontlines striving to attain convictions and keep the criminal justice system in motion.

Public prosecutors are in dire need of better resources. Underperformance and delay in criminal litigation cannot be pinned down solely to the pitfalls of the public prosecution system. It points to defects in the legal system as a whole. A sudden rise in private prosecutions has also only hindered the growth of the department. To rescue the public prosecution department from its crippling state and unleash the knowledge and competence embedded within the department remains a job of the Punjab government.


References

[1] The Secret Barrister, page110
[2] Section 1 of The Punjab Criminal Prosecution Service Act 2006.
[3] ‘Pakistan: Asmat Perveen, Public Prosecutor’ (Giz.de, 2017) <https://www.giz.de/en/worldwide/22429.html> accessed 26 November 2017.
[4] Dastageer, ‘Living In Fear: The Harried Life Of A Public Prosecutor’ (Herald Magazine, 2017) <https://herald.dawn.com/news/1153480> accessed 22 November 2017.
[5] Section 9 (4) of The Punjab Criminal Prosecution Service Act 2006.
[6] Section 9 (5) of The Punjab Criminal Prosecution Service Act 2006
[7] 2018 YLRN 161 LAHORE-HIGH-COURT-LAHORE
[8] Section 12 of The Punjab Criminal Prosecution Service Act 2006

Author: Syed Muhammad Ishaq