Aijaz Hussain Interviews Director Arshad Nawaz Of The School Of Law, Quaid-i-Azam University, Islamabad, On The Criminal Justice System
AH: What can you tell us about crime and its history?
Any act punishable under law and accompanied by mens rea is a crime. Crime is as old as human history. The first criminal act was the murder of Adam’s son by his other son. Human behavior is a complex mixture of both positive and negative traits. Inflicting pain is included in the negative traits and this is what results in public wrong or crime.
AH: What are the principles of justice?
The major principle of the criminal justice system is to protect the life, liberty and property of the citizens; this is the responsibility of the state. Whenever a crime is committed, the state responds vigorously. It establishes the whole system and formulates an apparatus with the people’s tax money. Various institutions are established to prosecute criminals and punish them when the crime is proved with concrete evidence. The whole purpose is to end the concept of private revenge. In older societies there did exist the concept of private revenge, but in modern states this has been replaced with the concept of collective revenge. Converting the concept of private revenge into a collective one helps keep criminal elements separate from the rest of the society. The state punishes criminals on behalf of the individuals. The criminal is still a part of the society, but the crime is a disease. Thus, it is the state’s responsibility to cure this disease and turn the criminals into responsible citizens by providing rehabilitation and restoring them back into the society.
AH: What happens when a crime is committed?
When a crime is committed, it is reported to the police by the victim, or his or her relatives, or any citizen of the state.
Pre-Trial Proceedings: In cognizable cases, a document based on first information is converted into a First Information Report (FIR). In our society the FIR is the basic foundation of a criminal case. The FIR contains details of the offender, victim, crime scene, motive behind the offence, etc. The Station House Officer (SHO) gives orders to the Investigation Officer (IO) to investigate the case. The IO visits the crime scene, collects evidence, draws a map of the scene, records statements of the witnesses, arrests the accused and calls for medical report if deemed necessary. The IO has powers to arrest and recover in cognizable cases. IO then formulates a comprehensive summary of the investigation (challan) and submits it to the court of trial.
After this, the proceedings of trial start. The Investigation Officer informs the court about the accused, the arrested and the people whom he released on the basis of innocence. The court may call the people released by the police to determine their innocence. Trial proceedings start with the framing of the charge. The accused is given first notice which conveys the charge against him or her. If he or she confesses to the crime, the court may punish him or her as per the penal codes. If the accused does not confess, the prosecution is asked to prove the case. The prosecution produces witnesses, documents, forensic evidence and other such stuff in order to prove the case.
Another statement of the accused is recorded as per section 342 of the Criminal Procedure Code (CrPC), whereby he or she is informed about the evidence collected and produced by the prosecution. Then if the accused confesses, he or she may be sentenced as per the nature of the crime. If he or she responds negatively, then it is asked whether there is any evidence in his or her favor. The accused is free to produce evidence in his or her defense. At the end of the trial, the final argumentation is commenced during which the accused may be convicted or acquitted. Finally, if convicted, there are post-trial proceedings which include the sending of the accused to jail, etc. and the right to appeal to the upper court.
AH: Why do miscarriages of justice happen?
There are multiple reasons for this: outdated laws, lack of capacity among the components of the justice system, corruption, torture and inducement. Laws should be up-to-date as per the norms and nature of the society. This can be done by reforming legal education, training officers, making them duty-bound, eliminating corruption and ending the practice of torture and inducement. Unfortunately, almost all investigations start with torture, which is against the spirit of the Constitution as well as international law. Thus, the right to a fair trial is violated from the very start.
AH: Who is responsible for miscarriages of justice?
All components of the justice system are equally involved. Throughout the entire proceedings, the IO and the judge of the trial case are the most important. Both enjoy almost absolute power, which is why there is a higher chance of corruption here. Similarly, there are few IOs in number and so the majority of cases is not properly investigated. This results in flawed or inadequate investigation which leads to fake evidence or unjust punishment. Police officials lack training and education. The police is still not equipped to deal with criminal cases. Outdated methods of investigation are still being used and hence give criminals a chance to tamper with the evidence. The police is corrupt because the society is corrupt. So it is not justified to shift all the blame onto the police which faces multiple issues like the lack of finances, funds, resources, logistics, transport means, capacity, etc. There must be some incentive to attract the youth to join the police force. The police is also vulnerable part of the society given the general attitude of the public towards it.
AH: Are there any centres to rehabilitate the victims of a crime?
There are no centres for victim rehabilitation. There are very little-to-no laws on this issue. Thus, the victims of crime are made to suffer throughout their lives.
AH: Why do people decide not to report crime?
If a report is registered, there is a lengthy process which leaves a person wandering between courts. Frequent calls from courts, lack of confidence in the justice system and many other flaws result in people deciding not to report crimes. This is terrible because if crimes are not reported it weakens the system and strengthens the criminals.
AH: What is restorative justice?
The logic behind restorative justice is to reform the criminal and compensate the victims. As the offenders are not involved in heinous crimes it is easier to reform and restore such persons. Many crimes are committed because of poverty and unemployment. If the state takes concrete steps to eradicate both these evils, there is a higher chance of reducing the number of criminals. The reformation of hardliners is very difficult, but it is not impossible. There is a dire need for resources in order to help strengthen and establish restorative justice. There should be separate prisons for different types of criminals. For example, pre-trial prisoners should not be kept with the criminals who are hardliners. At the same time, there should be separate prisons for juveniles and chance-offenders.
AH: Give us a general idea as to how our prison system is related to restorative justice.
Our prison system is not reformative, it is punitive. It lacks the capacity to house criminals. A majority of prisons dates back to the colonial era. There do exist parole and probation laws, but they are only used by political and powerful people. The poor prisoners are unable to take advantage of these laws. Pre-trial prisoners should be released on bail while criminals involved in petty offences should be kept on probation. Similarly, the parole laws should be accessible to all prisoners alike. There is a need for better resources, capacity building, legal education and training for all the components of the justice system.
AH: Tell us about the effects of crime on victims.
The effects of crime are both short-term and long-term. They range from bodily damage to mental and even financial impacts. The victim of a crime experiences a variety of effects. These may include direct costs and inconveniences due to the theft of/ damage to property, the physical effects of injury through violent crime, the guilt of being a victim, etc. Moreover, there can be psychological effects such as anger, depression or fear, which can cause sleeplessness, flashbacks to the offence or post-traumatic stress disorder (PTSD). At the same time, feelings of anxiety through the shock of the incident and worries of becoming the victim again may lead to feelings of loss of trust in the community and society.
AH: Thank you Sir!
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