The famous French judge and political thinker, Baron de Montesquieu, wrote in 1748 in The Spirit of the Laws that “there is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”

This tyranny seems to be an everyday affair acting itself out on the stage of our criminal justice system, like a Beckettian drama or a Kafkian novel. There is some deep malaise, something rotten in this rickety, ramshackle machine that goes by the name of criminal justice.

What exactly is the problem? Full of genuine pathos and a deep sense of alarm are the observations the Islamabad High Court while announcing judgment in a case on May 4, 2020. “The Court finds that the criminal justice system has failed the very object and purpose of its existence, that is to prevent and prosecute crime, to punish the guilty and to protect the innocent. The Court painfully observes that the present system “is perpetuating miscarriage of justice and appears to have become a source of grave injustice. In a nutshell, the present state of the criminal justice system is not serving its purpose and appears to be on the brink of collapse. All the branches i.e. the executive, the judiciary and the legislature are equally responsible for the prevailing conditions that definitely encourage corruption and perpetuate grave miscarriages of justice.”

These observations are addressed to criminal justice system within the jurisdiction of the IHC, that is the capital territory, but the truth they hold touches all jurisdictions in the country.

But, what is wrong with it after all? What needs to be fixed?

The IHC lists some of its common afflictions in Islamabad where it exercises jurisdiction: the outdated procedures and laws, the poorly trained investigators who are not provided sufficient financial recourses for investigation and fleece the victims, failure to set up an independent and separate investigation branch as envisaged under Police Order, 2002, absence of an independent and resourceful Prosecution Department, trial courts functioning in rented shops in a commercial area where conditions are deplorable and degrading, unwillingness of the witnesses of a crime to testify and, lastly, false and fabricated evidence.

Who is responsible for this state of affairs? The court holds all three branches of government responsible for the decrepit and derelict state of the system that “appears to be on the brink of collapse” and “definitely encourages corruption and perpetuates grave miscarriages of justice”. The court goes further and finds the state as remiss observing that “the State has neglected this most crucial part of the governance system for the past seven decades because it is obvious that the criminal justice system was never a priority.”

Looking at the dystopia that the present system has been reduced to, the court hopes that “it is a duty which every branch of the State… owes to every citizen, to collectively and individually take urgent measures in making the criminal justice system efficient, effective and accountable so that they have trust in its integrity, independence and professionalism.”

The fundamentals of the system need revision: the Criminal Procedure Code, the Qanoon-i-Shahadat, the Police Rules, and the Pakistan Penal Code, need to be re-written.

Is this the first time that a superior court has highlighted these issues or expressed a desire that the things be fixed? No, certainly not. Back in 2015, in Haider Ali vs DPO Chakwal, SCMR 2015, 1724, the Supreme Court of Pakistan gave as many as 15 directions. The SC engaged with the issues facing the criminal justice system, appointed Khwaja Haris as an amicus curiae. He then laboriously drew up a report in four volumes, recommending to the court what was needed to fix the dilapidated machinery of justice.

The report was concise and the directions of the SC quite comprehensive, but we have not moved a single step away from the brink of the abyss. All the issues highlighted by the present judgment of the IHC were addressed in detail by the SC back then, but the recommendations were never fully implemented.

History is likely to repeat itself. No amount of technical reform in police and prosecution will bring a quality change in the system. The fundamentals of the system need revision: the Criminal Procedure Code, the Qanoon-i-Shahadat, the Police Rules, and the Pakistan Penal Code, need to be re-written.

There is something fundamentally wrong with a system that survives on fabricated evidence and false witnesses even beyond the means and methods of investigation and the resources the prosecution lacks. We need to ask some professional questions here. Why do we need padding in our cases to satisfy standards of proof during a criminal trial? Why do we need eyewitnesses who are actually not present at the scene of crime? Why do we need graphic details of an incident in an FIR, the amount of detail no real witness can possibly observe when the crime is actually taking place? Why do we not investigate a case, but manufacture pieces of evidence needed to support a false statement during a trial? Why are identification parades conducted by judges are routinely discarded by the appellate courts for technical lacunae?

Do we really need this kind of identification parade in 2020? Why do the appellate courts generally find the voluntariness of a confession made before a judicial magistrate questionable?

Why does the system worry about the rights of the accused but not those of the victim? Why do the witnesses not come forward, or become hostile? Are the current rules and practices governing the admissibility of evidence during a criminal trial the best that we can have?

These are hard but actual questions. To find their answers is to find solutions. This task cannot be left to any one actor of the criminal justice system. We need a candid national debate among all stakeholders. Secondly, the products and processes of this system can be improved only with the full participation of the final arbiters of their quality: the judiciary.

Thirdly, the system needs structural changes and a new strategic direction, and not a change of tactics. A national commission on criminal justice reform that comprises investigators, prosecutors, attorneys, forensic experts, judges, and law-makers set up under the Law and Justice Commission of Pakistan, and directly supervised by the apex court can best identify the issues taking complete stock of every law, rule, procedure, practice and process of the system with a view to fashioning it anew. That will be the first step away from what Montesquieu called tyranny disguised as justice.

The writer is a civil servant