The criminal justice system is constantly being revamped on a need basis. Some areas have improved more than others based on the collective efforts of the dedicated lot in the legal fraternity.
However, the areas that have been neglected in the upgradation process are pulling down the entire success of improved criminal justice procedure. The criminal justice system plays the most important role of striking a balance between the fundamental protections of one person guaranteed under the constitution and the fundamental rights of others that they affect.
A vital part of the system that helps it in achieving its purpose of convicting the accused is evidence collection, part of which is the statements of witnesses. The process of investigating and prosecuting the case depends largely on the information and testimony of witnesses. Unfortunately, the system fails at providing protection to witnesses as they continue to be exposed to threats and exploitation, which mostly leads to witnesses in highly contentious cases backing out or being gunned down.
In 2013, the Sindh government passed the Sindh Witness Protection Act 2013. This piece of legislation served as precedent, as no such law existed earlier either at a provincial or federal level. Unfortunately, while the law exists on paper, it is yet to achieve its desired result.
The failure to practically implement the legislation was seen in 2015 when the only witness to the Sabeen Mahmud’s murder case was killed. Right after the incident, the government established the Witness Protection Programme (WPP), which should have been established earlier as envisaged under the preamble and sections of the Act. The fact that it took the government almost three years and the murder of numerous witnesses is an embarrassment for the criminal justice system.
Following suit, the government of Punjab has also approved the Witness Protection Bill but it has still not attained the status of law and there is much to be done about what goes in and what stays out of the final piece of legislation.
Nevertheless, while the delay has grave cost implications for witnesses, cases, due process and most importantly, fundamental rights it can perhaps be used as an opportunity to strengthen the witness protection programs in order to strike a balance between the rights of the accused and rights of the witness by learning from other jurisdictions.
By way of an example, the openness of judicial proceedings is a fundamental principle enshrined in Article 6(1) of the European Convention on Human Rights and all EU countries are therefore, required to guarantee the right. The right underpins the requirement for the prosecution witness to be identifiable not only to the defendant, but also to the open court.
The United Kingdom has, however, in certain circumstances bypassed this requirement in order protect the identity of the witness. For example, the legislature has, through the Youth Justice and Criminal Evidence Act 1999 (YJCEA), allowed witnesses to avail special measures where they are in the position to be ‘intimidated’. These measures include screening from the accused, evidence by live link, evidence given in private, hearing in camera and concealing the names. The tilt in favour of protecting the rights of witness is vital in such circumstances where the consequences of not affording the protection are incredibly damaging for the rule of law.
In Pakistan’s case, simple steps for starters would possibly give some sense of security to the witnesses and a witness protection program drafted on such lines can completely change the criminal justice landscape. These may include the police escorting the witness to courtroom, offering temporary residence in a safe house etc.
In fact, given the technological developments, witness statements can also be recorded through modern techniques as permitted under Article 164 of the Qanoon e Shahdat Order which allows the court to consider evidence made available through modern devices or techniques. Working within the Article 164 domain, the witness protection law can include the option of pixelating the face of the witness or digitally altering their voice to avoid any threat of being identified.
From a normative standpoint, these are only a few examples of what the law should include but the steps that the law does eventually prescribe for witness protection and its implementation program will determine the trajectory of success of the criminal justice system. The legislature must, however, act soon for the cost of delaying the program is too large to be paid by the loss of lives.
This writer is a lawyer.