Tuesday, May 17, 2005

JUSTICE: How to expedite criminal cases

Here is a proposal to clear the huge number of pending criminal cases in lower courts and eliminate the long delays in their investigations. These are collectively the two major causes for delay in justice.
The criminal cases pending in the lower courts are far beyond the capacity of the present number of judges. Considering the costs of new buildings, furniture and fittings, court staff, office equipment and other expenses, the Government may never be able to provide enough new courts to clear the present backlog and avoid it in future. The delay in police investigation of criminal cases is another major cause for delay in justice.
To solve the two problems, we should create posts of Mobile Judges in every District. In principle, there may be a Mobile Judge in every Union area. There may be one judge for two or more Unions if the crime is low and more than one judge in a single Union with a high crime rate, especially in urban areas. A Mobile Judge must reside in his area of jurisdiction for easy access to the crime scenes.
The District Judge may allocate the present pending criminal cases of minor nature to the Mobile Judges for on the spot hearings. That will clear the backlog. In future, a Mobile Judge, on hearing about any new crime, will immediately visit the crime scene, inspect it and note his observations. Then he will hold an open court in the relevant Union Council office or some other neutral place. He will record statements of the complainant, the witnesses, the accused and all other relevant persons. He may complete the hearing of a case in a day or two. He can then move on to the next crime spot. He will not wait for the FIR of the police to start his work. Instead, he will get information about a crime from any source – the complainant or any other person. If the police has already arrested him, the judge may take the statement of any accused in the police station.
In cases involving maximum imprisonment of less than three years or a fine of Rs 100,000, the Mobile Judge will announce his judgment on the spot. He will then send the file to the District Judge to deal with appeals, if any. The police investigation may be necessary only if the Mobile Judge is unable to decide a case due to lack of sufficient evidence. He may hear the case again after receiving the police report.
In cases involving imprisonment of more than three years or a fine of more than Rs 100,000, the Mobile Judge will only send his investigation report to the District Judge, not pronounce a judgment. In such cases, he will also scrutinize the police investigation report to see that there are no lacunae and may require the police to meet the deficiencies.
The hearing of such a case in the district courts will start after the District Judge receives both the Mobile Judge report and the police challan. If there are discrepancies, the District Judge may ask them for clarification and resolution of differences. The preliminary proceedings having been already completed, the formal hearing of the case by a criminal judge will be easier and shorter.

Terms of service. The Mobile Judges will be selected from experienced local lawyers (who are qualified to be appointed as judges) or from retired judges. Newly recruited judges may also request to be appointed as Mobile Judges after serving for at least three to five years directly under the District Judge to have sufficient experience of the procedures. However, such a judge will have to resign his post as a permanent judge to be appointed as a Mobile Judge.
The appointment of a Mobile Judge will be on contract, renewable every three years. The Mobile Judge will be paid a lump sum that will cover everything, including his salary, house rent, all other allowances and facilities, lease payments for a vehicle, fuel and maintenance of the vehicle, salaries for his staff and TA/DA. As the judge will be always mobile, there will be no need for any courtroom for him. He may be transferred to any other place but only within the same district and only after completing at least five years at a place. There will be no transfer on complaints. If there are serious complaints of violating the law and procedure, showing deliberate bias, corruption or inefficiency, the District Judge may report to the High Court and recommend cancellation of his contract, rather than mere transfer.
The advantages of contract appointments will be as follows:
a) It will be easy to get rid of a Mobile Judge if he is inefficient or corrupt.
b) The Mobile Judge will hire and fire his own staff and be fully responsible for their performance and behavior.

The proposed arrangement will
a) clear the present backlog of pending criminal cases in the lower courts,
b) eliminate the accumulation of pending cases in future,
c) expedite hearing of cases involving minor crimes,
d) reduce the huge burden on the lower courts, and
e) cause a huge reduction in the cost of justice.

Monday, May 16, 2005

GOVT: What the UK election means for Pakistan

The U.K. election in early May provides the strongest possible case against the parliamentary system of government. As the results indicate, the system violates democratic principles, does not ensure a stable government, does not reflect the will of the majority and discriminates against the smaller parties. Let us see what happened:
a) Labor Party got 356 seats against 197 of the Conservative Party, though it got only 3% more votes. This travesty happened because of the principle of “first past the post.” The principle allows a candidate to be the winner if he gets more votes than the others, even if he is ahead of all other candidates by only a few votes. He is not required to represent the majority of the voters in the constituency.
b) Labor Party got 35.2% of the votes that were cast, compared with 32.3% for the Conservative Party and 22.0% for the Liberal Democratic Party. If every party had been given seats in proportion to its votes, either of the two major parties must have been forced to have a coalition with the other or with Liberal Democrats. It would have just not been possible for the Labor to have “the historic third term.”
c) Labor Party got 9,556,183 votes in total. That was only about 16% of the total population of U.K. With such a small share of votes, how can the party claim to be the representative of the whole country?
d) A very small party, Independent Kidderminster Hospital and Health Concern, won a seat in Parliament with just 18,739 votes. By contrast, several bigger parties, such as UK Independence Party (618,898), Green Party (257,758) and British National Party (192,850), did not get a single seat, despite getting far more votes. This was unfair to the voters, who supported these parties.
e) The votes cast were 61.3% of the total registered voters in the country. The Labor got 32.3% of these votes. That comes to a little more than 20% of the total registered votes. Therefore, the party does not represent the majority of even the registered voters, not to speak of the whole population.
f) The day after the election, Prime Minister Tony Blair came under pressure to resign. As his party’s majority came down from 161 to 67, it was considered his defeat. The news media, the opposition and even the Labor backbenchers called for his resignation. If he refuses to oblige, he will not have authority and credibility during his entire term. Under the parliamentary system, he does not have a fixed term. Therefore, he can be asked to resign any time. If he does not, he will always remain under cloud and will not be able to govern effectively despite having won the election. Nothing can be a worse handicap for a head of the government. By contrast, nobody doubts that President Bush will complete his full term, even though his election was very doubtful both times.
g) There is a very intriguing sidelight to the election. Just before the polling day, somebody explained on CNN that the bookies were using a majority of 67 seats as the basis for accepting bets. Any seat more or less will mean a gain or loss for the bets. The Labor got precisely that number! What does it mean?
i. Did the bookies know better than the politicians and the pollsters about the results?
ii. Were the elections “engineered” to suit the bookies?
iii. Should the bookies, not the voters, decide who should come into power?
If this is the situation in “the mother of parliamentary system,” it can only be worse in our country, even if we have angels to hold elections. No wonder, the parliamentary system prevails only in the former British colonies and only because of the slave mentality of their politicians.
We have suffered tremendously under the parliamentary system. There has always been a conflict between the head of the state (Governor General or President) and the head of the government (Prime Minister), with both trying to dominate each other. The Prime Minsiter has always been subject to blackmail by the MNAs of his own party. Most of the ministers have always been unsuitable for their jobs. Horse-trading has been the normal practice. No political party that came into power since 1988 got more than 10 million votes (in a country of 150 millions). Now, no party is able to get a majority on its own, condemning us forever to unstable coalitions.
The lessons for us are obvious:
a) We must have the presidential system, under which the President gets more than 50% of the votes in a direct election and serves for a single term of seven years. (He must have majority’s mandate and enough time to implement his policies, without worrying about re-election.)
b) The seats in National and Provincial Assemblies should be given to political parties in proportion to the votes that they get. (The parties should truly represent the people.)
The future of our country and the welfare of our people are far more important than sticking to a system that is a relic of the colonial rule and does not work even in the home country.