Ungaming the system

In an articulate judgment authored by CJP Asif Khosa, the Supreme Court has declared that no aspect of the testimony of a witness who is found lying will be admissible in evidence.

The law previously was that parts of the testimony of a witness found lying that a judge otherwise found reliable could be used to convict someone. This must seem like legalese to non-lawyers. But the judgment identifies a fundamental flaw in our approach to seeking convictions, which keeps our criminal justice system unjust: we game the system to convict the accused.

CJP Khosa explains the context of the now-rejected rule thus: “It seems that because it was felt by the superior courts that generally witnesses testifying in criminal cases do not speak the whole truth and have a tendency to exaggerate or economise with the real facts, there is a danger of miscarriage of justice in the sense that a real culprit may go scot free if a court disbelieves the whole testimony on account of reaching the conclusion that the testimony was false in some respect. With all due respect, we feel that such an approach, which involves extraneous and practical considerations, is arbitrary besides being subjective…”

The SC emphasizes the need for consistency and objectivity in dispensation of justice. It holds that, “the rule of law and consistency in approach can be only fostered and strengthened if criminal cases are decided in a uniform way and only and only in light of the settled principles of evidence, not by bringing in subjective and practical considerations, which invariably will vary from one judge to the next”. And that “a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct.”

Most instructive is the SC’s approach to the role of judges. It notes that “Munir CJ was of the view that the job of a judge was to discover the truth whereas in our system of criminal justice discovering the truth is the job of the investigating agency and the judge is to decide as to whether the allegations being leveled against an accused person have been proved by the prosecution in accordance with the law or not. Such blurring of the distinction between the jobs of an investigator and a judge in the reasoning of Muhammad Munir CJ had remained unnoticed…”

The judgment makes at least three key points. One, noble ends can’t justify rotten means. We can’t tinker with the foundational principles of justice just because our justice system isn’t delivering. Two, for a justice system to possess integrity, legal outcomes must rest on application of legal principles and practices in a consistent and objective manner and must not vary from one judge to another. Three, the role of a judge is that of a neutral arbiter. He isn’t a messiah. He isn’t Sherlock Holmes. He must decide based on law and what is on file before him.

Let’s start with the first. The SC is saying that we can’t bend our system in view of ground realities to produce desirable results. Instead, while acknowledging realities, the system and its constituent parts must be designed such that they produce justice in accordance with the law and with established principles of fairness. Translation: even if you are convinced that a person is a drug dealer, you can’t plant drugs on him when he isn’t carrying any just because the system has many loopholes and it’s okay to doctor facts so long as it results in the bad guy getting locked up.

The larger picture is this: we have always opted to set up parallel structures to produce desired results instead of fixing the core. Look at terrorism. From the 1970s, the state’s approach has been to make special laws and set up special courts. Still unhappy with the results, we promulgated the Anti-Terrorism Act in the 1990s, which took out protections afforded to citizens against abuse of state authority. It was a civilian initiative and the SC struck down many bits of the law for being against fundamental rights and judicial independence.

But the state didn’t give up. It made no effort to look at the root causes of terror. It didn’t reconsider our partly-coercion and partly gut-sense based approach to investigation. It didn’t develop witness protection programmes. It didn’t deem it essential to link an effective prosecution system with a modern evidence-based investigation system capable of determining objectively which charges are likely to stick. It continued with its mantra that civilian judges let the bad guys get away scot-free because they are afraid or incompetent. That is the justification for military courts.

Whether its criminal law or civil law, our legal system encourages and relies on lies. The police, especially when trying to help, encourage concoction of facts in view of prevailing practices regarding what works in courts. In cases involving death you are to weave a story that invites application of terror charges to take the case to an anti-terror court. In lesser matters you are to narrate a story that contrives a non-bailable offence. As cases grind along, inflicting pain by having someone arrested and kept behind bars in the meanwhile becomes the goal.

There are entire areas of civil law that are also based on lies. The law of pre-emption is one such area. Till recent reforms in some provinces, rent law also encouraged people to break contractual promises and be dishonest. Instead of fixing laws or practices that encourage lies, our approach has been to acknowledge the need for and practice of lying and work with it. Everyone knows that everyone must swear affidavits that don’t contain the truth or the whole truth and we are all fine with it. This SC decision is the first corrective step – and thus very welcome.

The subtle points in this SC judgment about legal certainty and role of judges are equally critical. We are a common law system where legal certainty in large part depends on the clarity with which courts lay down legal tests and the consistency with which they apply them. This area offers the judiciary tremendous room for improvement. With time, there has grown a propensity to lay down subjective tests. So for example let us take Article 184(3). There is no objective test for predicting with certainty the cases that might fall within the original jurisdiction of the SC.

It all depends on the aspirations, wishes and whims of the incumbent CJP. The all-encompassing or all-excluding test for invocation of Article 184(3) is just one example. There are many other legal tests in the domain of constitutional and civil law that are equally subjective and equivocal. What that means is that the outcome of matters will depend more on the composition of the bench you are before on a particular day than the law. And then there is no objective basis for the composition of benches. Chief justices have unfettered discretion in the matter.

The question that naturally arises in view of this latest SC ruling is whether our constitution prescribes one role for judges in criminal matters and another in constitutional and civil matters? If it isn’t the job of a judge to discover the truth in criminal matters, as the SC has just ruled (that being an investigator’s job), can it be the job of a judge to discover the truth in constitutional matters? If not, then how do we understand the SC’s inquisitorial role under Article 184(3)? How does one explain the SC switching between adversarial and inquisitorial models at will?

In the inquisitorial model, a judge seeks to discover the truth and is akin to an investigator. That is a markedly different role from that of a neutral arbiter who sits in judgment over a dispute between two adversaries. So what role does the SC play in exercise of its suo-motu 184(3) jurisdiction? How does it determine that there is a dispute that needs fixing even without a complainant? If certainty and objectivity are the hallmarks of a fair criminal justice system, are the same principles not equally attracted when it comes to Articles 184(3) or 62/63?

CJP Khosa’s ruling, which seeks to inject honesty and certainty into the practice of criminal law, is a breath of fresh air. But will the underlying rationale and principles be applied to all areas of law? Will the SC interpret and structure its subjective and unfettered 184(3) powers as the next logical step?

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu