Basil Fernando
A few preliminary remarks
At the very outset it is necessary to place the problem of criminal justice reforms in SouthAsian countries in its actual context. The existing criminal justice systems are in serious crisis and this needs to be the starting point when we discuss this matter from the point of view of reforms.
That the criminal justice systems in South Asian countries are in crisis is not a matter about which there is controversy. Almost everyone, the governments, the civil society organisations, the professionals who are directly involved in the justice process, like judges, lawyers, academics in the legal field, the prison officers and police officers would hardly have any objection regarding the assertion that the systems are in crisis. The journalists and other public opinion makers are all the time, illustrating this crisis through their reports and writings.
The creative writers of all local languages in South Asia have been writing over a long period about the ingrained injustices and even the stupidities that are so widespread within the actual practice of the various sections involved in the administration of justice. Some of these writings portray heart breaking stories of injustices and others satirise the system. There is now even writings in English from authors from the region who write in the same manner as the local language writers. One such novel of recent times which scathingly exposes the contradictions in what is called the justice system in India is the novel ‘The White Tiger’ written by Aravind Adiga. In one of my poems I have tried to reflect on this in the context of Sri Lanka.
The Court House
In a land called Injustice
In a place called City of Fear
There was a court presided over
by a man called Mr. Absurd
The court sergeant was Mr. Drunkard
The Mudilier was Mr. Bribery
There were many clerks and peons
Who had no names.
The Litigants were the ordinary folk
Who thought they came to seek justice
About which
They had no notion
Some thought it white
Some thought it black
Some as liquor
And others as bribery
Summons were never written
But issued
Fines were never paid
But consumed
Mr. Absurd said
He held the balance
Holding on to the shoulders
Of Mr. Drunkard and Mr. Bribery
In the appeal court
Mr. Absurd was held in high esteem
The wisdom of Messrs D and B
Received nation’s applause
(The sea was calm behind your house)
The poem reflects what has become of our institutions of justice.
All this implies that embarking on projects for the reform of criminal justice systems in any of the countries of South Asia is a formidable task. and it is with that challenge in mind that the subject needs to be discussed.
In that context it may be relevant to point out that talking about criminal justice reforms in any of the developed democracies and talking about the same theme in the South Asian context, or for that matter in the context of any of the less developed countries, is to talk about two very different types of problems. Even in developed democracies no one would claim that there criminal justice systems are perfect. There is room for reform and very often reforms are required to meet with changes circumstances. However, what we find in the other context is that there are fundamental flaws in the systems and the type of reforms required is of a more basic nature. In a developed democracy the reform is mostly about making the operational systems conform to the ideal system as contained in the statutes. As in every other sphere of life between the ideal and the reality there is a gap. However, in the context of less developed countries what we observe is that the system as envisaged in the statutes and the systems that are being practiced are not based on the same basic principles. The ideal system, meaning the law as contained in the statutes and the operational system as practiced by the police, the prosecutors, the prison authorities and the courts, are based on different or contradictory considerations. What reform means is to alter the existing practices in a way to bring them to operation on the same principles as the ones on which the statutes are based.
This paper is based on the premise that understanding the actual system in practice which may be called the operational system, and designing ways to reform it to bring into conformity with the same principles as in the statutes is the main challenge of any effective reform.
The lynchpin of good governance is an effective criminal justice system.
The concept paper for this proposed meeting mentions that the lynchpin of good governance is an effective criminal justice system. From this standpoint, if we are to look into the SouthAsian nations, we find that it is in the criminal justice system that there are some very fundamental problems. All these problems may be arising from the history of the SouthAsian nations beginning from the feudal past, followed by a long period of colonial rule and administration under the British Empire, and then followed by a period of turbulence under the new situation as independent nations. As independent nations, the several countries have undergone various forms of challenges to the democratic process, either by way of authoritarian systems achieved through the ballot itself or by way of military dictatorships for considerable periods of time.
The historical circumstances under the feudal past have left many areas which remain still deeply influential in obstructing the development of democratic and rule of law systems. Value systems which in SouthAsia were mostly influenced for centuries by the entrenched caste system make itself felt into the present day. Many of these deeper influences have little been understood as there is a kind of perception that this past has been wiped away either by the colonial powers or with the advent of new governments after independence. However, the transformations which have happened both under colonialism and thereafter have not been of such a fundamental nature to make a clear break with the past feudal foundations of SouthAsian nations.
Influence of the traditional penal philosophy of disproportionate punishment
From the point of view of development of criminal justice, the past of SouthAsian nations presents some unique problems. In the past, the penal philosophy of the caste-based society was disproportionate punishment. The understanding of crimes and punishment changed vastly in terms of the place that a person holds within the caste structure. Some crimes which today are considered serious crimes were not so considered within the caste structure in terms of castes which held dominant positions. In a sense, the caste at the top were not accountable to anyone and if their transgressions mattered in any way, it was more in a spiritual sense to be dealt with by ritualistic purifications rather than by means of accountability through a system of justice. The penal philosophy was directed towards punishing those who were considered of the lowest strata within the caste structure. They were punished not merely on the basis of individual liability but as a whole family and even as a whole local community or clan.
An outstanding novel of recent times, The White Tiger, captures this ancient penal philosophy in the following paragraph.
“The greatest thing to come out of this country in the ten thousand years of its history is the Rooster Coop.
Go to Old Delhi, behind the Jama Masjid, and look at the way they keep chickens there in the market. Hundreds of pale hens and brightly coloured roosters, stuffed tightly into wire-mesh cages, packed as tightly as worms in a belly, pecking each other and shitting on each other, jostling just for breathing space; the whole cage giving off a horrible stench — the stench of terrified, feathered flesh. On the wooden desk above this coop sits a grinning young butcher, showing off the flesh and organs of a recently chopped-up chicken, still oleaginous with a coating of dark blood. The roosters in the coop smell the blood from above. They see the organs of their brothers lying around them. They know they’re next. Yet they do not rebel. They do not try to get out of the coop.
The very same thing is done with human beings in this country”.
The novelist thereafter explains why the ‘rooster coop’ was made possible. He attributes it to the Indian conception of family and the system of punishment where entire families of the servant class are punished for any transgression of one member of the family.
R.R. Nagaraj a reputed Indian writer explains the practice of disproportionate punishment with following examples.
“It all began with a Dalit’s act of stealing corn, on a rainy day in August 1988, from a field close by. The guilty Dalit owned up to the theft and accepted that he would have to make amends. The proper legal way was to hand him over to the appropriate agencies of the state. But upper-caste villagers literally took the law into their own hands and made the thief and his companions eat human excreta. Another example is: Another similar episode in 1987 at Bidaralli, a village in Bleguam district, reveals one more facet of the problem. A violent clash took place in this village on the issue of a Dalit boy’s act of ‘teasing’ an upper-class girl. His crime was that he had ‘pulled a girl’, but the village societies retaliatory measure was to impost a total boycott of Dalits. This was so severe that the Dalits could not reach the village’s drinking water sources. One can cite hundreds of such — and much more cruel – instances”.
(The Flaming Feet and other essays: The Dalit Movement in India by R.R. Nagaraj)
This philosophy of disproportionate punishment had left a deep impression on the minds of SouthAsian peoples despite many transformations which have taken place in these societies. The fundamental notion of equality before law which is the most basic norm of the modern justice system, though adapted by statute and even by constitutional provisions, the Asian philosophy has not all together been erased nor has the influence of its most basic penal philosophy been eradicated. Equality before law remains a basically problematic area and the eagerness to punish the poorer sections of society still remain a predominant characteristic in SouthAsian societies almost in defiance of the legal provisions that have been accepted in terms of penal codes and criminal justice procedures. Thus, one of the primary areas to be concerned with in talking about indicators of criminal justice systems, that are based on modern rule of law conceptions, is the extent to which the old penal philosophy of disproportionate punishment has been replaced in the actual implementation structure within a particular country.
Operational systems as against systems in statutes
In talking of indicators in this area of penal philosophy as well as other areas of criminal justice, it is essential to think of the operative systems of justice rather than those systems, which are found in the statutes. The law which is often borrowed from more developed jurisdictions often seems adequate or even, in some sense, perfect. However, such textual perfection does not necessarily mean that the law is in fact implemented with perfection or to a degree that could be called adequate or satisfactory. Where the past comes in is in the area of the actual implementation methodologies and the psychologies that is operative in the mind of the actual operators of the system. Perhaps, when practically looking into effective criminal justice, this distinction of what is found in the text and what is found in reality should be given a very high importance in terms of the actual conditions of SouthAsia. In fact, observers find that this distinction is of primary importance in all other countries usually labeled less developed countries.
Therefore, it is not enough to look into what is working in the mind of legislators in developing various statutes for criminal justice. It is also necessary to look into the mind of the operators of the system. To make the meaning clear, perhaps, an example may be useful. Within a police station, the persons who are dealing with crimes as investigators are supposed to be following the laws as laid down in the penal code and the criminal procedure code. However, one would find that rather than these laws and procedures, there are systems that have been developed in practice by the operators, such for example, as a police sergeant or a constable involved in trying to make arrests or trying to get information about crimes. They may have developed methodologies which are not only different but completely incompatible with the actual legal text under which they are supposed to operate. For example, in almost all police stations torture is used to get information about crimes. Naturally, the legal text based on modern criminal justice notions forbids the use of indirect or direct torture. However, a police officer engaged in investigations may find that he achieves better results by way of use of torture and these operators may even claim that it is absolutely impossible to talk about criminal investigations without torture. This is a common characteristic of all criminal investigations in SouthAsian countries.
Similarly, there may be many other forms of practical methodologies that are developed by the operators of the criminal justice system through the practices of those who have proved themselves to the persons working within the system as being those who are clever and those who achieve results. These methodologies for example, like making false promises to alleged criminals in order to get confessions or by use of various kinds of incentives which are not permitted in terms of the legal text to be used being used by these persons as effective methodologies which have proved useful in actual practice.
Enumerating these practices is almost an impossible task because the operative systems which are in fact being used are quite elaborate and sophisticated that it would take a lengthy consideration in order to enumerate all these practices. What is required is to recognize that such a thing as actual operative systems exist, and this operative system is more often than not, contrary to the principles and rules set down in the statutes. Therefore, it is necessary to look into indicators to find the actual methodologies which are in operation.
Therefore, use of such methods, such as the elimination of torture or other forms of coercion, should be one of the major indicators about the existence of investigative systems which are compatible with modern legal philosophies and texts. Torture is only one such indicator and quite an important one at that. However, there are other frequently used practices. These should be noted and then indicators must clearly articulate the ways to find that these actual practices which are inconsistent with legal texts are being eliminated. If this is not done, much of the exercises of finding indicators to see a successful criminal justice system may be of no real practical use.
It is necessary to be careful not to use the indicators which are normally used in more developed systems where some of these frequently used methodologies in South Asian nations have been successfully eliminated over a long period of time by use of various methods including various types of investments which were being made in order to eliminate those practices. Contextualization of the indicators should be an essential element in dealing with finding effective indicators in terms of understanding criminal justice in the SouthAsian region.
Use of criminal justice process for money making
Looking into the criminal justice and its reform from the point of view of the operational system as against systems in the legal text, takes us also to another issue of finding indicators to demonstrate the ending of the use of criminal justice processes as a money-making business and purely making it a justice process. Now again, from the point of view of developed countries, this may not be a consideration. However, we are talking about less developed countries where, particularly in South Asian nations, for almost a century or more this process has been used extremely cleverly for money making more than ensuring justice. Those who are involved in the money making process are primarily the police, but it is not only the police who are involved in this process. The prosecutors, probation and prison services and today, even sections of the judiciary are perceived by the people as profiting from the system for their own peculiar interests.
The accusation of corruption in the criminal justice process is so deep that there is almost no trust of the system, among average citizens in South Asian nations. As mentioned earlier, in the past, the system operated in favor of those who are of the upper crust of society and punishments were mainly for those who were in less advantaged positions. Thus, there is one kind of corruption which is ingrained in the affluent groups, using the criminal justice process by various kinds of manipulations for their own benefits. That a rich man can find a way to escape criminal justice is a common perception in all the South Asian nations.
Corruption among higher ranking officers
When dealing with misuse of the criminal justice process for money making purposes and in relation to corrupt practices, it is necessary to deal not only with lower-ranking officers but higher ranks. Though there is an assumption that higher ranks are less prone to corruption, the experience in South Asian countries in recent times is that higher ranks have become extremely corrupt and there is collusion between higher and lower ranks. Often, there is sharing between earnings by the officers of lower ranks with officers of higher ranks and this way, officers of lower ranks achieve protection. Especially when systems become politicized, opportunities are opened up for corruption. Higher officers get the larger share of profits that come through corrupt practices. Particularly in dealing with crimes which involve corporations and affluent people including politicians, big opportunities become available to higher ranking officers to get rich within a short period of time. Therefore, an indicator in a criminal justice system should include monitoring system of the incomes of state officers particularly those of higher ranks. This is not just the case for the police but also for other branches of criminal justice including the prosecution department, probation and prison services and the judiciary. The presumption that the higher ranking judges are immune from corruption is no longer a perception which exists in South Asian societies.
Fabrication of charges
On the other hand, there is also the belief that highly unscrupulous methodologies can be employed to use criminal justice process for individual gain. One such system is fabrication of charges. South Asia is very much known for extreme use of this method and often this method can be useful in intimidating persons to provide money in order to escape criminal charges. Often, the threat that if certain conditions are not met, the person will be laid with charges relating to drugs and other charges that forbid bail has become a common occurrence.
There are a thousand ways by which the process can be utilized in order to make sometimes petty gains but also can sometimes lead to gaining extreme advantages. In a recent arrest in Sri Lanka for example, a senior police officer was alleged to have demanded a bribe of 1 million rupees to settle land disputes in favor of one party. The officer was nabbed in the process of accepting the bribe and he is now being remanded. However, many such transactions go unnoticed and rather heavy benefits could be gained by this process.
It has also been observed that the process of arrest but also the process of detention and trial could be used in this fashion. Therefore, there should be clear ways of demonstrating that the criminal justice process has been able to eliminate this possibility. That it is being used only with good faith and only on the basis of complaints received and processed in a genuine manner and that the whole process is clean is an essential aspect in the restoration of the people’s faith in criminal justice.
Delays in Administration of justice
In this area, the issue of speed of justice is another essential component of judging functional criminal justice systems. In all South Asian countries, the delay in adjudication has always been of scandalous proportions. In India, for example, a case may take 10 to 15 years. In other countries, cases go on for 5 to 10 years or more if appeals are involved. The process of delay virtually leaves enormous room for corruption, intimidating witnesses and undermines the credibility of the whole process. Many developed countries have ended criminal trials within a period of around one year and in petty offences, in less periods of time. There should be a clear indicator of time schedules within which a trial can be brought to an end and an appeal can be disposed of in cases. Thus, this is an extremely crucial indicator in judging the credibility of a criminal justice system.
Allocation of adequate funds for criminal justice
Related to all the issues mentioned above, one of the most important areas in which clear indicators are to be developed is the allocation of adequate funding for the administration of justice. Much of the criteria in developing operational systems to accompany legislative provisions in criminal justice has been the inability to allocate adequate funding to various areas of operations of criminal justice.
The area of investigations requires enormous investments. Perhaps it is not mere quantity of funds but the proper allocation of funds. Large battalions of very low-ranking officers are often kept within the policing systems purely due to lack of more sophisticated apparatus with adequate funds to operate such sophisticated systems. This lack of sophistication is one of the major areas to be dealt with but often the reason for such lack of sophistication is not lack of trained personnel, often there is a large sections of trained personnel within these systems but their services are under-utilized because of the complications of the operational system which relies on lesser talents but talents which deal more brutally with the task rather than with the knowledge and sophistication. Thus, the funding into the whole area of reform of the criminal investigation system also with the availability of modern technological facilities as well as adequate training for the use of such facilities is an area where proper allocation of funds could achieve significant results.
The adequate funding and associated management issues need to be dealt with also in other areas such as prosecution systems, management of probationary, prison systems and courts. The system of the judiciary and also the systems of management of courts suffer enormously due to inadequate funding and also due to lack of proper management of the funds. Thus, a strategy with dual aspects which provides adequate funding as well as managerial arrangements so that the reforms are achieved to deal with contemporary needs are issues that need to be addressed. Whether these needs are addressed should be dealt by way of development of indicators into measuring whether funds are made available and whether adequate managerial reforms are introduced to deal with funding.
What is being suggested in this paper is a difference of approach into the question of criminal justice. What is being stressed is the need to deal with operational levels of criminal justice system and ways to achieve drastic reforms at operational level by consciously developing strategies and together with accompanied financial and managerial resources.
Witness Protection
Witness protection is also a concept that has virtually not been introduced to the South Asian criminal justice systems. The murder of witnesses or intimidation of witnesses is one of the most common features of our systems. In a system that is so beset with delays, there are many opportunities to destroy witnesses. The reform of a criminal justice system under these circumstances is almost impossible without introducing comprehensive laws relating to witness protection. However, of course, bringing laws itself are not enough. The problems of operation of these laws must be considered in the course of reform. Therefore, development of institutions within which people can be trained for witness protection and providing of adequate funding for witness protection should all be considered when developing witness protection systems.
One of the most difficult aspects of witness protection is when the accused are state officers, including police, military and the like. South Asia today is known for serious crimes by state agencies including forced disappearances, extrajudicial killings and similar human rights violations. The prosecution of the offenders of these crimes has not developed to any significant extent in any South Asian country. Where attempts have been made by the victims to make complaints and find justice, retaliations are often terrible. The fear of such retaliation intimidates witnesses and often complaints are not made about serious violations.
It is not only victims that fear such retaliations but general people. to come and give testimony of what they have seen or heard about crimes, particularly those relating to state officers. Therefore, when developing indicators about criminal justice reform, clear indicators should be developed regarding whether laws are made for witness protection and whether these laws are adequate, whether there are operational programs for witness protection, whether there are proper training facilities and necessary securities for those who engage in witness protection, whether there are special arrangements for witness protections when suspected criminals are state agents such as police and military. Of course, a clear indicator should be there as to whether adequate funds have been allocated for the effective implementation of such programs.
Command Responsibility
In developing the indicators of measuring the effectiveness of criminal justice systems, the issue of command responsibility becomes an important component. Particularly in the police, the functioning of the system very much depends on the responsibilities exercised by higher ranks over lower ranks. Officers from above the rank of ASP to IGP are the top ranks within the policing system. They exercise the supervisory and managerial functions within the system. The systems functioning can be effectively enhanced if the functions of the top ranks are exercised in a proper manner. Therefore, system for monitoring the effective performance of higher ranks is an essential aspect. The measurements for weighing the relationship between the top ranks and the lower ranks as well as the relationship relating to the monitoring of police stations by the higher ranks in terms of inspection of documents, premises and behaviour of the officers could easily be developed in terms of the regulations that already exist. However, in developing these measurements once again, attention should be kept on where operational flaws are and how monitoring systems should be developed to counter these flaws. Therefore, the starting point needs to be research and documentation so that understanding of the flaws of various ranks within the police is understood. On the basis of such understanding, indicators should be developed.
This same principle applies to the supervisory functions within the prosecutors department. Prosecutorial corruption can destroy a criminal justice system. In several South Asian countries, the prosecutorial system have not been developed to an extent that proper functioning of the system could be assured. Even in countries which had achieved development of the prosecutorial system, such as attorney general’s department, recent decades have seen considerable degeneration due to politicization. Therefore, the same methodologies of monitoring of the means by which the supervisory capacities are properly exercised should be given attention to. The same principles apply to the probation, prison authorities and to the judiciary.
The higher judiciary exercises a function not only relating to the lower judiciary but to the entire system of administration of justice. The entire system very much depends on the functioning of the Supreme Court. However, even in countries which have a reputation for democracy, there have been allegations relating to corruption and misdemeanors on the part of the top judges. Therefore, developing mechanisms for supervision must be developed by top-ranking judges, judiciary themselves, in order to ensure that their system can function without leaving room for suspicions. As judicial independence is a primary factor in the running of a system, the development of measurements for internal audit and monitoring should be developed by these higher ranks of the judiciary itself.
How separation of power principle operates
The totality of the administration of justice will depend on the operation of the principle of the separation of powers. Again, the acceptance of this principle in terms of the constitution and other statutes may have been achieved in other countries. However, it should be noted that in some South Asian countries there is a problem in this regard due to the development of authoritarianism, separation of powers has been challenged in some jurisdictions. Where there was militarization, separation of powers is seriously challenged. The development of indicators to ensure that the separation of powers exists and that the judiciary is able to function independently is essential to the vitality of a system of administration of justice. Therefore, issues such as judicial review, how far the judicial review in fact exists as a legal concept and how far at an operational level, the facilities exist for the functioning of the judicial process should be a prime consideration when evaluating a system of criminal justice.
Politicization of the system
The tendency to politicize the system, as mentioned above, can only be achieved when independence is directly or indirectly undermined. Therefore, there should be indicators which clearly show that the possibility of political interference does not exist.
The recent years have also seen the development of obstacles to the right of the accused for bail. Under ordinary circumstances, the giving of bail is the rule and it is only under exceptional circumstances that bail may be refused like for example the absconding of the courts by the suspect and similar considerations. However, recent years have seen interference with this principle due to many policy reasons. Refusal to give bail is now often used as a form of punishment to suspected criminals, particularly where the possible charges are of a serious nature. For example, in the area of possession or use of drugs, the accusations under anti-terrorism or emergency laws often lead to the refusal of bail for long periods of time. Such offences have increased greatly. This whole area should be looked into so that the refusal to give bail should not be used as a means of punishing people who have not been found guilty as yet or by overcoming some problems relating to some administrative matters by keeping people under custody by obstructing their bail. Often, this aspect is very much also used relating to politically motivated arrests and detentions. Arrest and detention of politicians and trade unionists or protesters are often done by refusing them bail. There are some jurisdictions where the discretion is in the hands of the head of the state or someone with delegated powers such as a higher officer in the defense ministry to grant or refuse bail. The function has been taken from the hands of the judiciary to the hands of the political authorities.
Tolerance of those who view dissenting views
Misuse of this aspect could virtually cripple a criminal justice system and make it a system of punishment of those who hold dissenting views from the government by misuse of the judicial process. Clear indicators need to be drawn on the issue of granting bail so that the personal liberties will not be trampled for political or other reasons. As it has been pointed out by authorities such as AV Dicey, the principle is that arrest is illegal and the burden of proving its legality depends on showing the circumstances which are strictly within legal boundaries such as that there is an investigation into a crime relating to the person, or that the person has been convicted of a crime. These basic aspects relating to personal liberty and the duty of the magistrates to protect such liberties should be highlighted by way of indicators which are drawn to indicate the way the personal liberties are being protected by the judiciary.
