Behind the ailing prosecution

Commenting on the sorry state of prosecution of criminal offenses, a lead report of this newspaper on July 19 stated that "the long-standing demand for reforming the prosecution system with professional lawyers remains unmet" and "loyalty to the party in power remains the main criterion for appointment as law officers in the Supreme court as well". Editorially, it has been observed that "the partisan considerations that motivate appointments of public prosecutors have become a systemic problem over the years. Inefficiency of the State appointed lawyers along with flawed investigation results in low rate of conviction".

The above scenario needs to be studied and examined for better understanding of the working of a vital part of the criminal justice system, as well as the imperatives for quality prosecution service.

The office of Public Prosecutor is not a mere public office but a public office of considerable significance for the integrity and efficiency of the administration of criminal justice. The Public Prosecutor, being an officer holding public office, is responsible to conduct the case. Anyone appointed to this office must, in the interests of the public, have a high degree of efficiency and knowledge of the law of crimes and the criminal procedure; he must have character and integrity that are irreproachable and above suspicion; he must have a sense of duty to the public and to the court as overriding considerations. If these requisites are lacking, the incumbent to such an office can gravely injure the administration of criminal justice.

The ideal Public Prosecutor is surely not concerned with securing convictions, or with satisfying the government with which he has to be in contact. He must consider himself as an agent of justice; his discretion to apply to the court for its consent to withdraw from any prosecution is a vital one. It is in the interests of the State and the public that any selection to such an office must be based on the most pertinent considerations, without prejudice or favour, and that only the best person or persons should be appointed.

The Public Prosecutor is not just an advocate engaged by the State to conduct its prosecutions. The importance of the office from the point of view of the State and community is brought out in Section 494 of the Criminal Procedure Code which vests in the Public Prosecutor discretion to apply to the court for its consent to withdraw from the prosecution of any person.

It is also worth remembering that the Public Prosecutor, though an executive officer, is in a larger sense also an officer of the court and he is bound to assist the court with his fairly considered view, and the court is entitled to have the benefit of the fair exercise of his function. In our situation, the scheme of the administration of criminal justice is such that the primary responsibility of prosecuting serious offences which are classified as cognizable offences is on the executive authority.

The Public Prosecutor has to apply an independent mind and exercise his discretion as stipulated in the statute. In doing so, he acts as a limb of the judicative process and not as an extension of the executive. Where the court is satisfied that the Public Prosecutor did not yield to the executive directives and made an independent study of informing himself of the materials placed before the court, the latter is strongly likely to concur with the Prosecutor's submission. Despite his undoubted duty to his client, the State, he must at times disregard his client's most specific instructions if they conflict with his duty to the court to be fair, independent and unbiased in his views. As an advocate for the State, he may be ranked as a Minister of Justice equally with the judge.

The purpose of a criminal trial is not to support a theory but to investigate the offence and to determine the guilt or innocence of the accused, and the duty of a Public Prosecutor is to represent not the police but the State and his duty should be discharged fairly and fearlessly. The Public Prosecutor has to aid the court in discovering the truth and also in the discharge of its duty to do justice as between the State and the accused.

In view of the circumstances as mentioned in the newspaper report and keeping in mind the issue of ensuring desirable Prosecution service, the first imperative of establishing an apolitical prosecution service or cadre can no longer be brushed aside. Criminal prosecution cannot be regime centric. We may follow the Crown Prosecution Service modality as obtaining in England or adopt the District Attorney system as practiced in the United States. The priority, however, is on delinking the prosecution from the political executive's control.

The honour and dignity of the office of Public Prosecutor as statutorily stipulated has to be ensured by means of substantial injection of resources along with professionalism of highest order. Political partisanship shall have no place in it as favours to party faithful would inevitably mean the prejudicing of the integrity and efficiency of criminal prosecution.

Along with the above, the deficits of proper investigation have to be plugged. Many investigators do not understand the true import of legally proper and tenable investigation. In specific terms, investigators are found to be more disposed towards submitting charge-sheets without correctly ascertaining the facts and circumstances of the incident under examination. Such investigators are not subject to proper supervision and often experience extra-departmental pressures to resort to rash actions. Adequate investigative skill development training is a must, along with influence-free recruitment of investigating personnel.  

The writer is a columnist of The Daily Star.