Introduction
Public
prosecutors are political party playthings. Each time a new government comes to
power—that is, each time power rotates from one of the two main parties to the
other— all of the public prosecutors and assistant public prosecutors in the
country are replaced, from attorney general down. They carry on until the next
power flipflop, and again the other side puts its own people back in.
Prosecutors are also thrown out during a government’s tenure if they dissatisfy
the whims of a local member of parliament, a minister, or some other political
heavy.
The
prosecuting and investigating branches also are completely detached. If the
police do not investigate a crime, the prosecutor has no responsibility. Most
of the time public prosecutors accept charge sheets prepared by police officers
solely because of bribes or other external pressure. They will only challenge
the police when there is a direct conflict between the police and their political
masters.
The
March 1999 bomb blasts case is a good example of all these problems with
prosecutors and politics in court cases. Around midnight on March 6 that year,
two explosions killed ten persons and injured around a hundred attending a
cultural programme in Jessore. More than ten of the wounded suffered permanent
injuries. The same night Sub Inspector Abdul Aziz lodged two cases with the
district police station. Assistant Superintendent of Police Dulal Uddin Akand
in the Criminal Investigation Department was assigned to investigate. Finally,
in December ASP Akand laid charges against 24 persons, including a top leader
of the BNP (later a government minister), Tarikul Islam. Other persons
connected to the BNP, which was then in opposition, were also named.
According
to Justice Shafiur Rahman.
Fairness
and justice are concepts that remain Undefined, unpredictable, and highly
relative. What is fair to one may be unjust to another. Thus, the law has to be
certain, predictable, uniformly applicable, and properly understood. Law,
however, is very dynamic and very much influenced by the tide of times.
Consequently, it is not easy to talk of, much less enforce, the rule of law. It
is against this volatile backdrop that the prosecutorial service plays a significant
role in upholding the rule of law in the criminal justice system.
At the initial stage, the public prosecutor is
empowered to decide whether to prosecute a case in court or not. During trial,
the public prosecutor controls the direction of the prosecution. In each stage,
the prosecutor has specific functions and deals with different law enforcement
agencies, namely, the police and the courts. As a major player in the criminal
justice system, the prosecution service maintains a relationship with both agencies
and even serves as a buffer between them. It is therefore crucial to have an
efficient, competent, and credible public prosecutorial service in any
criminal justice system. This paper looks into the current state of the public
prosecutorial service in Bangladesh and its problems, and makes
recommendations to improve the service.
 |
Based on the latest available data the public
prosecutorial service includes 63 public prosecutors 40 additional public
prosecutors 88 special prosecutors, and 1249 assistant public prosecutors There
are 497 courts which require the presence of prosecutors .The case load of each
prosecutor is approximately 1054cases.
Lawyers are appointed as public prosecutors,
additional public prosecutors, and assistant public prosecutors to prosecute
serious offences before the court. They are assigned to a specific territorial
jurisdiction and are not transferable. They are paid retainer fees depending on
the number and nature of cases they handle. They handle private cases civil
and criminal provided they have no conflict of interest.
On the Other hand, police officers are appointed
prosecuting sub-inspectors, prosecuting inspectors, and deputy superintendents
of police prosecution to prosecute minor offences before the lower magistrates.
They are permanent members of the police service under the Home Department
who are allowed to act as prosecutor except in cases investigated by them.
Public prosecutors in Bangladesh have no control over
the investigation; such control lies with the magistrates (Sections 157 and
159, Criminal Procedure Code). There is no separate corresponding wing in the
executive police. The duties of the public prosecutor commence with the
appearance of the accused before the courts. There are three types of duties.
The first type refers to duties performed independently, without taking.
The Current State of the public prosecutorial Service
At
present, no organized and integrated prosecutorial service exists in
Bangladesh. Administratively, the solicitor wing of the Ministry of Law,
Justice and Parliamentary Affairs handles the prosecutorial function. The
Ministry appoints prosecutors from among practicing lawyers or from the police
for a short term, usually for the duration of one case, sometimes until the
appointing government is in power.
Instructions
from another authority. Examples are the duties to conduct the prosecution,
present the case, and lead the presentation of evidence. In performing these
duties, the prosecutor exercises independent discretion. The second type
refers to those duties performed with the permission or under the direction of
the court. An example is the power of the prosecutor, with the permission of
the court, to withdraw other charges against an accused who has been convicted
of one or more charges the third type refers to those duties performed with the
permission or under the direction of the executive government. An example is
the filing of appeals against judgments which can only be done upon direction
from the executive branch.
Based on the latest available data, the
strength of the public prosecutorial service includes 63 public prosecutors, 40
additional public prosecutors, 88 special prosecutors, and 1,249 assistant
public prosecutors. There are 497 courts which require presence of prosecutors.
The case load of each prosecutor is approximately 1,054 cases. No
indicators are available to assess the performance of regular basis. The only
informal measures of their performance adverse remarks recorded by the court in
judgments and the prosecutor’s continued political value to the administration
in power. The budgeted amount for the public prosecutorial service for
2005—2006 is reportedly Tk l 5 crores and
88 Iakhs (approximately
$2,268,571). In the immediately $2268571) 2004—2005, it was Tk 15 crores and 85 lakhs (approximately $2,264,286) of
which Tk 15 crores (approximately $2,142,857) was paid as retainer fee to the
prosecutorial service and the remainder spent on its management. In 2003—2004,
the expenditure was Tk 12 crones (approximately $1,714,286) on retainer fee
and 75 lakhs(approximately $107,143) on management. The retainer
fee is actually about one fourth of the prevailing market rate or even less,
and is never promptly paid. The approximate average retainer paid to a
prosecutor is Tk83,070 (approximately $1,186) per annum.
Strengthening the prosecutorial Service
Models
Upon independence, Bangladesh, India, and Pakistan
inherited the colonial model of the kistan inherited the colonial model of the
prosecutorial service which had two distinguishing features. First, the service
was usually headed by a professional called the legal remembrance who
prosecuted important cases. Second, the distinct magistrate had great influence
in the appointments retag to the district of which he or she was in charge.
However, the three jurisdictions eventually developed their respective
prosecutorial services differently. India and Pakistan have established
separate services while Bangladesh still lacks a permanent cadre of prosecutors
under an organized prosecutorial service. In case Bangladesh decides to pursue
a permanent cadre of prosecutors, it may look at various models for guidance.
The Indian Model
In one of its reports, the Law Commission of India pointed
out the inadequacy of public prosecutors and recommended measures to ensure
that there are as many prosecutors as there are criminal courts. In the case
of P Ramachandra Rao (2002, 4
5CC 578 pr. 20), the Supreme Court of India had occasion to comment that the
absence of, or delay in appointment of, public prosecutors caused trial delay.
Accordingly, India established its federal legal services under the executive
branch and framed Cadre and Recruitment Rules of the Department of Prosecution
and Government Litigation. The rules provide for direct recruitment of
assistant public prosecutors (APPs) through a qualifying written examination
followed by viva voce voting conducted by the Public Service Commission. An
APP is required to have a law degree and 2 or 3 years of practice. All other
appointments in the service are by promotion. Promotion as senior APP requires
a minimum of 5 years of service as APR Another 5 years of service as senior APP
is required for promotion as public prosecutor. The public prosecutor can be
promoted to joint director of prosecution. After satisfying 3 years of
service as public prosecutor. Another 3 years of service as joint director is
required to be eligible for promotion to the post of Director of Prosecution,
The Pakistan Model
Pursuant to the Access to Justice Program funded by
the Asian Development Bank, reform in a larger but coordinated sector is being
undertaken in Pakistan. A good part of it is the separation of the
investigative functions of the police from their other duties. This allows the
investigation to become more focused, professional, and effective in contributing
to the criminal justice system. After examining various models, a model draft
ac-acceptable to all four provinces was prepared and presented in their
respective provincial assemblies. The objective of the draft Criminal Prosecution
Service Law is to establish a Criminal Prosecution Service to ensure
prosecutorial independence, effective and efficient prosecution of criminal
cases, and better coordination in the criminal justice system. The service is
to be headed by a prosecutor general, with additional deputy and assistant
prosecutor general as subordinates.
In the districts, there would be district, deputy, and
assistant district public prosecutors, and other public prosecutors as the
prosecutor general may appoint. Recruitment up to the level of additional
prosecutor general would have to be made through the public service commission
based on a competitive examination. The police registering the criminal case,
the police investigating the case, and the police filing the interim or final
report are all placed under the supervision and control of the district public
prosecutor. The prosecutor general is required to submit annual reports which
are to be laid before the Assembly.
US Model
In the United States, criminal justice is primarily a
state subject. The prosecutorial service is completely independent of the
police or the executive. Prosecution is conducted by a district attorney assisted
by attorneys known as prosecutors. Every county has one district attorney, a
lawyer. Elected by the people for 4 years. The district attorney has absolute
discretion on whether to prosecute an offender and this decision cannot be
contested. The consent of a jury is sought before filing the case in court only
when the district attorney is of the opinion that the offender must be
prosecuted. Even then, the jury rarely withholds consent.
Selecting
the Appropriate Model
As
Warren Burger, former chief justice of the US, explained, “The function of the
judicial system is to produce justice at the lowest possible cost, the shortest
possible time, with the least possible strain on the participants.” Thus, the
most suitable model would be one that is: (i) a step forward to achieve this
goal; (ii) capable of being harmoniously integrated in the existing system; and
(iii) affordable for the existing and foreseeable future resources, financial
and human, of the country.
Regardless of which model is adopted, however, the
greatest challenge is to get the support of the government to implement it.
Political will is crucial because there is usually a strong inclination to
simply maintain the status quo. The next huge challenge is sustaining and
monitoring the implementation of the model, as well as taking timely remedial
action where necessary.
Challenges to Strengthening
the Prosecutorial Service of Bangladesh
In addition to the two major challenges mentioned
above, which are general in nature, three other challenges are specific to
Bangladesh context. First, no suitable model has emerged. As such, an
examination of the Pakistan model is recommended, as it may be suitable for
adoption and modification. Second, adequate funding for implementing such a
program of reform is needed.’ The amount of funds required will depend on the
model selected. The Pakistan model entails expenses amounting to at least
three times more than the present allocation for the prosecutorial service of
Bangladesh. Third is the issue of which— between the Law Department and the
Home Department—should administer this agency. However, the answer to this
issue can be gleaned from an examination of the current functions, training,
and experience of the two departments.
The functions of the two departments have been
delineated, one being largely judicial and the other primarily executive. The
law department is managed by judicial officers who primarily discharge
quasi-judicial functions of legal drafting and giving legal opinion. On the other
hand, the constitutional separation of the judiciary requires judges to avoid
executive responsibility except and only to the extent necessary for managing
their own courts and supervising their subordinates. Moreover, judges are not
sufficiently prepared to discharge executive duties. While some judges can
perform executive functions very well, most judges are not equipped with
managerial skills because their training is legal and further, the Law
Department has limited experience in coordinating police investigation and
prosecution of a case. Its administrative experience is confined to selecting
lawyers as government pleaders or as public prosecutors under a retainer fee
system. On the other hand, the Home Department has a long experience of administering
uniformed services and of protecting their independence. This department has
already been exercising supervision over the police prosecution service at the
lowest tier. It is therefore best suited to address all the reasonable demands
of the prosecutorial service on the investigation wing of the police promptly
and effectively, if both are under its administrative control.
Conclusion
The
basic precondition for reform of the prosecutorial service in Bangladesh would
necessarily be the separation of investigation work of the police from its
other work, as has been done in Pakistan. Without such a separation, any reform
of the prosecutorial service will have limited contribution to the improvement
of the administration of criminal justice in the country. To be effective,
the reform process must change both the institutional and organizational
attributes of the prosecutorial service to make it independent, competent, and
efficient.
Public
Prosecution Service in
India: An Institution in Need of Reform
Prof. (Dr.)
N.R. Madhava Menon
The prosecution agency is that
segment of the criminal justice system responsible for prosecuting people who
have been charged by the police with a criminal offense. Under the federal
scheme of the Indian Constitution, criminal procedure including prosecution
system is an item in List Ill of the Seventh Schedule to the Constitution,
under which both the Federal Parliament and the State Assemblies are entitled
to legislate. Article 254 provides for resolution of inconsistency, if any,
between laws made by Parliament and laws made by legislatures of states of the
Republic.
This paper examines the weaknesses identified in the
prosecution system and suggests certain strategies for strengthening the
institution.
The Prosecution Service and its Rose in Criminal
Proceedings
The objective of the prosecution
stage of the criminal proceeding is to protect the innocent and seek
conviction of the guilty—apparently two conflicting objectives. Given this
dual purpose and the adversary nature of criminal proceedings, the role of the
prosecutor is value-laden with notions of fairness and justice. The prosecutor
is neither motivated by any sense of revenge or desire to get a conviction.
Rather, the prosecutor is an officer of the court who should be personally
indifferent to the outcome of a case. The duty of the prosecutor is to place
all the available evidence before the court, irrespective of whether it goes
against or is likely to help the accused. In this sense, the impartiality of
the public prosecutor (PP) is as vital and significant as the impartiality of
the judge.
The
investigation and prosecution are two separate and distinct aspects of
administration of criminal justice. Formation of an opinion as to whether a
case can be made out to place the accused for trial is the exclusive function
of the police. Under Section 173 of the Code of Criminal Procedure
(herereinatter called the “Code”), the “police report” (result of investigation
under Chapter XII of the Code) is the finding that an investigating officer
draws on the basis of materials collected during investigation. Such
conclusion can only form the basis of a competent court to take cognizance and
to proceed with the case for trial (“police report” is sometimes in popular
parlance referred to as a charge sheet). Normally the role of a PP commences
after the investigation agency presents the case in the court on culmination of
investigation. Of course, it is open to the police to get the best legal
opinion, but it is not obligatory for the police to take the opinion of the PP
for filing the charge sheet (2000[4] 5CC 461).1 After the Code was promulgated
in 1973, the prosecution agency was expected to be completely separated from
the police department. The objective of such separation is obviously to ensure
that police officers who investigated a case shall have no manner of control or
influence over the prosecutors who will prosecute the case, Under the scheme
of Sections 24 and 25 of the Code, a police prosecutor (of former times)
cannot even become eligible to be appointed as assistant public prosecutor
(APP) 2 on regular basis (1995 Supp.[3J SCC37).
The duty of the prosecutor is to place all the
available evidence before the court, irrespective of whether it goes against or
is likely to help the accused. In this sense, the impartiality of the public
prosecutor (PP) is as vital and significant as the impartiality of the judge.
The Law Commission of India (1958) recommended the
constitution of a separate department of prosecution under the director of
public prosecution, who shall have control over all types of prosecutors in the
State.
The Organizational Structure of the Prosecution
Service
Though varying in details, the existing prosecution
machineries in the 29 States of the Indian Union are quite similar in
organization and function. They are governed by the same provisions of the
Code, except for a few states in the northeast region where the separation of
the executive from the judiciary is still to be completed. The states in the
tribal areas of the North-East region have their customary laws protected under
the Constitution until such time that the Parliamentary enactments are extended
to such tribal areas. To understand the functioning of the prosecution system,
it is necessary to examine the status and structure of the existing system in
representative States in the country.
The
Prosecution Service of the State of Haryana ‘until 1973, all superintendents,
assistant and deputy superintendents of police in the State of Haryana were
deemed ex-officio PPs (Punjab Police, Rule 27.4) and selected prosecuting
inspectors and prosecuting sub-inspectors were also appointed as PPs. The
prosecuting agency consisted of a number of gazette officers, upper and lower
subordinates as sanctioned by the Government and the Inspector General of
Police (Punjab Police, Rule 27.14). Rule 12.3 of Punjab Police Rules permitted
direct recruitment of legal practitioners, not more than 30 years old, as
prosecuting sub-inspectors. The Police Rules contained detailed provisions
with regard to duties and functions of the prosecuting agency and prosecutors.
It consisted mainly of conducting the case in the criminal courts deciding on
appeals in case of acquittals, advising and supervising investigation and
preparing the charge sheet upon submission of the police report. Under this
scheme, investigators and prosecutors for magisterial courts operated under
the unified command of the superintendent of police in the district,
eliminating any problem in coordination between the investigating officer and
the prosecutor to 1 April 1974 (i.e., before the adoption of the Code of
Criminal Procedure [Amendment] Act of 1973), the State of Haryana followed the
Punjab Police Rules under which the prosecution agency had two wings. The
first was in the magisterial courts managed by prosecuting inspectors and
prosecuting sub-inspectors. These police officers in turn were under the
administrative control of the superintendent of police of the district and the
inspector general of police at the state level. The second wing was under the
control of the legal remembrance and consisted of district
attorneys and assistant district attorneys selected from among senior practitioners
conducting prosecution and the Court of Session.
The Law Commission of India (1958) recommended the
constitution of a separate department of prosecution under the director of
public prosecution, who shall have control over all types of prosecutors in
the State. Further to this, the Code sought to separate the prosecution service
from the police and to create a cadre of APPs, PPs, and special public
prosecutors. Section 24(4) provides that the district magistrate shall, in
consultation with the session’s judge, prepare a panel of names, which are, in
their opinion, fit to be appointed PPs or additional public prosecutors for the
district. Similarly, the Central/State Government, after consultation with the
High Court, appointed a PP and one or more additional public prosecutors for
conducting any prosecution, appeal, or other proceeding on behalf of the
Central/State Government. An advocate with at ieast7years of practice is
eligible for appointment as PR Section 25 of the Criminal Procedure Code
provided for APPs to conduct cases in the courts of magistrates. While only an
advocate with at least 7 years of practice can be appointed PP. there is no
such stipulation for appointment of an APP. In exceptional cases, a police
officer may also function as an APP but no police officer can be appointed as
PR As no qualifications have been laid down for appointment to APP, technically
speaking an APP need not even be a law graduate. Prosecution by private
individuals is also possible under the Code (Section 301 [1]) though such pleaders
are to act under the direction of the PP or APP, as the case may be.
Pursuant to the 1973 amendment to the Code of Criminal
Procedure, the State of Haryana set up the Directorate of Prosecution under the
Department of Justice and all prosecutors were brought under the Directorate’s
control. Thus, the Directorate brought about the unification of the two wings
of prosecution and rationalized the cadres of PPs and APPs. Besides conducting
prosecution in the courts, the Directorate renders legal advice to various
government departments. At the headquarters, the Director of Prosecution is
assisted by a number of law officers including two joint directors and several
administrative personnel.
The
district prosecution machinery in Haryana now consists of the assistant
district attorneys/ APPs and the district attorneys/deputy district attorneys.
Assistant district attorney/APPs conduct cases in the courts of judicial as
well as executive magistrates while district attorneys/deputy district
attorneys conduct cases before session’s judges and additional sessions judges.
The district attorneys guide, supervise, and control the deputy attorneys and
assistant attorneys posted in their respective districts. For important cases,
senior practitioners from the Bar may be engaged, with the sanction of the
State Government.
|
Table-1. |
||
|
Position |
Number of |
Compensation |
|
Director of Prosecution |
1 |
Rs 15 100—18 300 |
|
Joint Directors |
5 |
Rs 13 500—17 250 |
|
District Attorney |
50 |
Rs 1 0 000—1 5 000 |
|
|
(20 in courts and 30 in other departments) |
+ special pay |
|
Deputy District Attorney |
1 31 |
Rs 8 000—1 3 500 |
|
Assistant District Attorney |
344 |
Rs 6 500—1 0 500 + special pay |
|
Source Syndicate Paper of National police Academy |
||
The salary
offered to public prosecutors is comparable to that offered to judicial
officers (civil judge junior division) when they are inducted into the State
judicial service.
The
key auxiliary staffs such as the “Naib Court” and “Malkhana” staff are provided
by the police department. The Directorate, in turn, sends some legal
professionals on temporary deputation to the police department to give legal
advice and handle legal work. With the experience gained in the legal
department of police, these officers on re-deployment in the Directorate prove
to be more effective prosecutors. The Directorate also sends law instructors to
the Haryana Police Academy to train police personnel.
The Director of Prosecution used to come from the
police until the High Court invalidated the appointment of police officers as
Director of Prosecution and directed the State to fill the post only by
appointing a senior officer belonging to the prosecution agency, having
sufficient experience of actual working as a PR The Supreme Court concurred
with the opinion of the High Court quoting an earlier judgment (1995 Supp[31
5CC 37). As regards compensation, the salary structure of government employees
is not uniform throughout India. The salary offered to PPs is comparable to
that offered to judicial officers (civil judge junior division) when they are
inducted into the State judicial service.
The
Prosecution Service of the State of Andhra Pradesh
To
get a complete picture of the prosecutorial service in India, one might look
into the prosecution scenario in a southern State as well. The State of Andhra
Pradesh had similar prosecution machinery like the one in Haryana before 1974.
The Directorate of Prosecution, created on May 1986, serves under the Law
Department and performs the following functions:
(iii) Supervises
the work and exercises control over all the PPs in the State except the PP of
the High Court;
(iv) Advises
the Government where necessary with regard to filing of appeals in criminal
cases; and
Nearly 400 officers in different ranks form the
prosecuting machinery in the State. The prosecuting agency consists of seven
categories of ranks; (i) Director of Prosecution; (ii) Additional Director of
Prosecution; (iii) PPs/Joint Directors; (iv) Additional Public Prosecutor-Grade
i/Deputy Director; (v) Additional Public Prosecutor-Grade II; (vi) Senior APP;
and (vii) APP.
(i) Prosecuting
cases filed not only by the police but also by other departments such as
Excise, Commercial Taxes, Forest, Food and Drug Administration, etc.;
(iii) Prosecuting
criminal cases pending before collectors/assistant collectors;
(iv) Ensuring
that the charge sheet is legally sound and rendering advice on whether more information
or further probe is necessary on any matter;
(vi) Expediting
resolution of pending cases in consultation with SHO and other officials;
(vii) Maintaining
cordial relations with the police, the courts, department officials, and members
of the Bar;
(viii) Assisting the court in a fair and impartial
manner by giving considered views;
(ix) submitting
periodic statements of work, attending meetings held by the directorate for
review of work, furnishing required information, and appraising problems
encountered; and
It is interesting to note some of the deficiencies of the
prosecution machinery in Adhra Pradesh:
(i) The
case records continue in the custody of police even after filing the charge
sheet. These are brought to court on the day of hearing. This denies the
prosecutor the opportunity to go through statements or to brief the witnesses.
(iii) There
is no proper accommodation or support service in the court complex.
(iv) Lack
of separate courts for criminal cases leads to prosecutors remaining idle when
the courts conduct civil cases. There is a need for more exclusive criminal
courts.
(vi) Service of summons on witnesses by police
personnel leads to considerable delay.
What Ails the Prosecution?
Given the current organizational setup of the prosecution
and its sensitive dynamic with the police, the prosecution machinery suffers
from multiple disabilities, some systemic and some incidental. The Committee on
Reforms of Criminal Justice System appointed by the Government of India in its
report (March 2003) identified, interlaid,
some weaknesses in the prosecution machinery and its functioning.
Insufficient Coordination between the Prosecutor and
the Investigating Officer
Prior
to the Criminal Procedure Code (Amendment) Act, 1973, prosecutors appearing in
the courts of magistrates functioned under the control of the police
department. Prosecutors used to scrutinize police papers and advise the police
on legal issues before filing them in court. The prosecutor used to keep a
close watch on the proceedings in the case, inform the jurisdictional police
to bring the witnesses on dates of trial, refresh the memory of witnesses where
necessary with reference to their police statements and examine them
lengthily. As a result of close monitoring and careful preparation, very few
witnesses would dare turn hostile. In case they did, the prosecutor expertly
exposed them through effective cross-examination.
The amendment to the Criminal Procedure Code in 1973,
changed the situation and weakened the effectiveness of the system of coordination
between the police and the prosecution. The 14th Report of the Law Commission
observed that it was not possible for PPs to exhibit that degree of detachment
necessary for fair prosecution if they were part of the police organization.
Consequently the prosecution wing was separated from the police department and
placed under a Directorate of Prosecution (Sections 24 and 25, CrPC). The
Supreme Court also reiterated this position and directed the States to place
the prosecution wing administratively and functionally under the direct control
of the State Government ~ 1995 SC 1628). Thus, the police and the prosecution
were made totally independent of each other. Whereas there used to be unity of
control and cooperation between them in prosecuting cases, with separation,
this cooperation disappeared substantially and accountability got diluted.
While in some states the Directorate of Prosecution functions under the
administrative control of the Home Ministry, in others it is under the Law Department.
The decision was left to the discretion of the Council of Ministers of the
State Government. Similarly, while in some states the Director of Prosecution
is an officer of the higher judicial service (district and sessions judge), in
others ~t is a police officer of the rank of Inspector General or Additional
Director General. The impartiality of the PPs is largely dependent upon who
controls the agency.
Most
police officers as well as some administrators and judges believe that the
lack of coordination caused by the separation has resulted in falling
conviction rate, falling disposal rate, poorly investigated cases being filed,
indifferent management of trial proceedings including bail, and lack of
effective review particularly at the district level. There is no doubt that the
police-prosecution interface is in need of immediate remedial action, but
giving the prosecution back to the police is neither desirable nor practical.
Inadequate Professional Competence and
Commitment.
The
professional competence and commitment of PPs and APPs is another factor
contributing to the weakness of the system. PPs and APPs are appointed under
the provisions of Sections 24 and 25 of the Criminal Procedure Code which envisages
a regular cadre of prosecuting officers in every State. Unfortunately, such a
cadre does not exist in many States. Since no specific guidelines for
appointment of APPs are set in Section 25 of the Criminal Procedure Code, it
has become a matter of political patronage rather than merit.
There is no attempt to professionalize the prosecution
service systematically. The selection is neither merit-based nor competitive.
Remuneration and conditions of service are not attractive to the talented
members of the profession. There is no system of education and training for
prosecutors and assistant prosecutors. Because of this, the morale of the
service is very low and prosecutors become easy victims of temptation to bribery
and corruption.
Strategies to Strengthen the Prosecution System
Elements of Good Governance
Good
governance in an organization, including the prosecution agency, depends
primarily on three essential elements working in perfect coordination in
pursuit of common objectives.
First, norms and standards, as well as duties and functions,
should be carefully laid out for governing the conduct and management of the
agency. This is the function of the substantive and procedural law on the
subject. In seeking strategies for reform, one should therefore analyze the
existing law and the principles sustaining it and find out whether the law
itself is the problem rather than its solution.
The second element in efficient functioning of an
organization is the set of institutions envisaged under the law and the
structures and procedures provided to manage them. In the present instance, it
is the Directorate of Prosecution and the offices associated with it and their
management that require scrutiny.
The third and most important element in efficient and
effective implementation is the set of personnel who will manage the
institutions according to the laws. Who are they and what are their
qualifications, competence, and motivation? How are they selected and what are
their service conditions? What training should they receive and how is their
work monitored and supervised? What are the accountability mechanisms which
regulate their behavior? These and related aspects are so critical that even if
the laws are inadequate and the institutions are improper, the system can still
work if the personnel are competent and committed.
An improved prosecution system would mean better
quality of work and increased productivity in terms of case disposal. It would
further mean a higher degree of fairness and impartiality in decision-making,
upholding the rule of law in all circumstances, untouched by external or
internal influences. Finally, it means better accountability in the management
of prosecution on behalf of the State in order to give greater security to
citizens by guaranteeing freedom from crime. If this is what is meant by
strengthening the prosecution machinery, the strategy lies largely in selecting
the right personnel, providing them the best training, and giving the
leadership and motivation through correct policies and service conditions.
Strategies for Strengthening Personnel
Under Section 26 (6) of the Criminal Procedure Code,
if a regular cadre of prosecuting officers exists in the State, the appointment
of PPs and APPs can be made from persons constituting that cadre. However,
where the State Government believes there is no suitable person available in
such a cadre, the Government may appoint someone as a PP or APP from the panel
of names recommended by the district magistrate (in consultation with the
district judge.
To build a cadre of prosecutors, open and competitive
selection of young advocates is required. Option may be given to candidates to
choose either service (judicial or prosecution) on the basis of their ranks.
This will raise the status of the prosecutorial service and attract more
corpulent people to the post of APPs. All prosecutors should be gazette
officers” who shall not be allowed to engage in private practice. Eligibility
to take the prosecutor’s selection test should be a degree in law, preferably
with some years of practice in criminal courts. Opportunities for promotion
to higher positions in the prosecution service/judiciary should be available
to cadre officers. Therefore, Sections 24 and 25 of the Criminal Procedure
Code need to be amended accordingly. APPs on selection must be given intensive
training at the judicial academic police academies on both theory and practice
to improve their professional skills. There should also be periodical
in-service training to upgrade their professional skills continuously.
The Need for
a Unified Prosecution
If
the prosecution at the district level is to function efficiently and
impartially, it is not only essential to have a proper system of selection and
training but also a closer supervision and monitoring mechanism particularly
at the junior levels. This would require a unified integrated structure which
may be functionally separate in terms of the tasks of investigation and
prosecution. While the prosecutor should not be dependent on the police, he or
she should be able to seek closer cooperation with the investigating officer.
The investigating officer’s intimate knowledge of facts can certainly help the
prosecutor in countering the defense. At the same time, the investigator will
gain immensely from the expert legal knowledge of the prosecutor. Since the
functions are integral and complementary to one another and the personnel
employed in the two agencies cannot meaningfully work in isolation, a total divorce
is undesirable. Some degree of unification of control is necessary for
effectiveness in prosecution. To achieve this mutual cooperation without
subordination of one to the other and without impinging upon the independence
of either, an arrangement should be worked out to have a common center of control
and accountability.
To sum up, the unified structure contemplated here
involves an effective prosecution organizationally separate from the police
but functionally complementary to it. To achieve this, the Committee on
Criminal Justice Reforms (2003) recommended that a senior police officer with
the requisite qualification of the rank of Director General may be appointed as
the Director of Prosecution in the State in consultation with the Advocate
General. This should become a cadre post. He or she should be able to bring
about proper coordination without affecting the independence of the
prosecutors. The Criminal Justice Reforms Committee also recommended that the
Director function under the guidance of the Advocate General of the State. The
duties of the Director of Prosecution, interlaid,
shall be to facilitate effective coordination among the investigating
and prosecuting officers, and review the working of the PPs, additional public
prosecutors and APPs, and investigators.
Re-organized District Prosecution
Agency
The
district prosecution agency should handle all criminal prosecutions in the
district. Personnel constituting this agency should be full-time employees and
recruited on merit by the Public Service Commission. The APPs who appear before
the courts of magistrates should be given intensive training to develop their
professional skills. Section 24 (6) contemplates a cadre of prosecuting
officers in the State. The system of preparing panels by the district
magistrate in consultation with the district judge is a poor and inadequate
substitute to a cadre-based system. When any cadre is constituted,
opportunities for promotion to some higher positions should be provided to
give proper incentive.
At the State level will be the Directorate of
Prosecution constituted under Section 25Aof the Code of Criminal Procedure to
whom the District Prosecution Agency will be subordinate. The Committee on
Criminal Justice Reforms was also of the view that the Director may call for
reports in any case which ends in acquittal, from the prosecutor who conducted
the case and the Superintendent of Police of the district to review the work
of the prosecutor and of the investigation. This would bring greater
accountability to the system.
(i) All
appointments to APPs shall be through competitive examination held by the
Public Service Commission.
(iii) No person
appointed APP or promoted to PP shall be posted in the home district to which he
or she belongs, or where he or she was practicing.
(iv) PPs appointed directly from the Bar shall hold office
for a period of 3 years. However, the State may appoint as special public
prosecutor any member of the Bar for any class of cases for a specified period.
All prosecutors should be “gazette officers” who shall
not be allowed to engage in private practice. Eligibility to take the
prosecutor’s selection test should be a degree in law, preferably with some
years of practice in criminal courts
While the
prosecutor should not be dependent on the police, he or she should be able to
seek closer cooperation with the investigating officer. The investigating
officer’s intimate knowledge of facts can certainly help the prosecutor in
countering the defense. At the same time, the investigator will gain immensely
from the expert legal knowledge of the prosecutors.
(v) In appointing PPs and APPs to various
offices, sufficient representation shall be given to women.
(vi) Intensive,
continuous training is to be given
(vii) Promotional avenues should be given to prosecutors
in institutions of the police and judiciary.
(viii) The Director of Prosecution must ensure accountability
by calling reports on all acquittal cases from both the prosecutor and the
Superintendent of Police.
(x) Provision may be made for posting PPs and
senior APPs at the offices of the police commissioner and district
superintendent of police for rendering legal advice.
Enlisting Cooperation of Witnesses
It is unfortunate that witnesses
who constitute an important element of the administration of justice are
usually indifferent, afraid of or so influenced by criminals that they either
turn hostile or do not come forward with the truth. Inordinate delay in
trials adds to the problem. During interrogation, the witness is bound to
answer all the questions of the police, but he or she is not bound to answer
them truthfully. Despite being criminalized, perjury is not taken seriously
because the rules provide that no court shall take cognizance of the offense of
perjury except on the complaint in writing of that court or of the court to
which that court is subordinate. Before such a complaint can be made, a
preliminary inquiry must be conducted. Although the Indian Parliament has
introduced amendments to allow the court to try such cases summarily, increase
the punishment for perjury and administer the oath and caution witnesses to
speak the truth at the pain of penal sanctions, witnesses can still take the
plea that the statement recorded is not the same as he or she gave. Thus, the
inspection officer is never sure if witness related the true facts of the
case. This situation tends to weaken the prosecution. Furthermore, an
influential accused can easily win over witnesses during the period between
their examination by the police and their actual appearance in court.
On the other hand, by giving evidence relating to the
commission of the offense, a witness performs a duty of assisting the court to
discover the truth. Witnesses have no private stake in the decision of the
court when they are neither the accused nor the victim. They perform an important
public duty and devote their time to assist the court. They might incur the
displeasure of the persons against whom they give evidence. They submit
themselves to cross-examination and cannot refuse to answer questions. They
take all this trouble and risk not for any personal benefit but to advance the
cause of justice. Therefore, witnesses should be treated with respect and
protected. Unfortunately, what is happening is just the reverse. Witnesses are
not even adequately compensated for travel and other incidental expenses.
Worse, their safety and that of their families’ are not secured. The court
should be made duty-bound to give necessary protection to witnesses.
Recognition of Victim’s Rights
Of
all the parties in a criminal proceeding, it is the victim who has the greatest
interest in the truth and the punishment of the guilty. However, under
existing criminal law and procedure, only the prosecutor appointed by the State
is considered the proper authority to plead on behalf of the victim. At best, a
private counsel is given a limited role to assist the prosecutor with the
permission of the court and may also submit written arguments after the
closure of evidence in the trial.
During interrogation, the witness is
bound to answer all the questions of the police, but he or she is not bound to
answer them truthfully. Despite being criminalized, perjury is not taken
seriously because the rules provide that no court shall take cognizance of the
offense of perjury except on the complaint in writing of that court or of the
court to which that court is subordinate.
Victims
have a right to testify as prosecution witness. However, victims often fall
prey to threats and harassment by criminals, dissuading them from testifying
freely and truthfully. Absence of a victim protection law thus tends to weaken
the prosecution system. The Committee on Criminal Justice Reforms has
recommended changes in the law recognizing rights of victims in the conduct of
criminal trials to accord them their rightful place in proceedings pertaining
to their injury and ensure that the prosecution does not fail to perform its
role due to neglect, incompetence, and corruption. The recommendations, interlaid, include:
(i) The
victim—and a legal representative, if the victim is deceased—shall have the
right to be imp leaded as a party in every criminal proceeding where the
offense is punishable with 7 years imprisonment or more;
(iii) The victim has a right to be represented by an
advocate of his or her choice, provided that an advocate shall be provided at
the cost of the State if the victim is not in a position to afford a lawyer;
(iv) The victim’s
right to participate in criminal trial shall, interlaid, include the right to: (a) produce oral or documentary
evidence with leave of the court, and/or to seek directions for production of
such evidence; (b) ask the witnesses questions or suggest to the court
questions which may be put to witnesses; (c) know the status of investigation
and move the court to issue directions for further investigation on certain
matters; (d) be heard in respect of the grant or cancellation of bail; (e) be
heard whenever the prosecution seeks to withdraw and to offer to continue the
prosecution; (f) advance arguments after the prosecutor has submitted
arguments; and (g) participate in negotiations leading tO settlement of
compoundable offenses.
Lessening
the Burden of Proof
Under the adversarial system of criminal justice, the
accused is presumed to be innocent and the burden is on the prosecution to
prove guilt beyond reasonable doubt. The accused also enjoys the right to
silence and cannot be compelled to reply to questions. The judges under the
system acts like an umpire letting the parties advocate their respective
positions. The parties effectively determine the scope of the dispute and the
evidence to be presented to the court. To appear neutral, the judge seldom
takes any initiative to discover the truth. The system is heavily loaded in
favor of the accused and can sometimes be insensitive to the legitimate rights
of the victim.
Unless
the system operates fairly for both sides, it is unlikely to serve the
objective of punishing the guilty. The weaknesses of the prosecution,
technicalities of procedure, and sheer manipulation of the rules of evidence
can result in the acquittal of a guilty accused. The Committee on Reforms in
the Criminal Justice System (2003) revisited the standard of proof required in
criminal proceedings, opining that the burden of proof has to be shared in
appropriate circumstances. As such, the committee made several recommendations
for the reform of the law of evidence and procedure in order to be fair to the
prosecution under the adversarial proceeding and to enable the judge to take an
active role in discovering the truth. First, the committee desired to redefine
the standard of proof in criminal cases which ought to be higher than
“preponderance of probabilities” but lower than “proof beyond reasonable
doubt.” What is required is “clear and convincing” proof to convince the
judge. Defining it in terms of “doubt” and “reasonableness” is inviting
confusion, whereas leaving it to the conviction of the judge is in tune with
the existing provisions of evidence law the world over. Thus, the standard of
proof now is “the court being convinced that it is true” instead of “proof
beyond reasonable doubt”
The
committee also recommended the active involvement of the judge in the search
for truth irrespective of the prosecution’s failure to perform its assigned
duties. Thus, the judge can now give directions to the investigating officers
and prosecution agencies in the collection and submission of evidence. Section
311 of the Criminal Procedure Code was sought to be amended to let any court
at any stage summon any person as a witness and reexamine any person already
examined as it appears necessary for discovering the truth in the case. Section
482 was sought to be revised to clarify that every court shall have inherent
power to make such orders as may be necessary to discover the truth or to
prevent abuse of the process of the court or otherwise to secure the ends of
justice.
Conclusion
The
failure of prosecution is not always of its own making. While it is important
to select prosecutors properly, give them adequate training, and constitute an
independent directorate for professionalizing the system, it is equally necessary
to study the systemic and structural weaknesses in the law and criminal law
practice. After all, effective investigation and successful prosecution are
the basic guarantees that the State has promised to victims of crime.
Strengthening the system consistent with the rights of the accused is a
condition sine qua non for fair
and impartial justice.
The committee desired to redefine the
standard of proof in criminal cases which ought to be higher that
“preponderance of probabilities’ but lower than “proof beyond reasonable doubts
what is required is “clear and convincing proof to convince the judge.
Pakistan Prosecution System
Strengthening
the Public Prosecutorial Service in Pakistan
According to Justice Shafiur Rahman
In Pakistan, public prosecution is a provincial subject.
Thus, matters pertaining to administration and financial control of the
prosecution service are within the purview of the provincial government. On
the other hand, matters pertaining to rules of procedure and duties of
prosecutors at criminal trials are governed by the Criminal Procedure Code of
1898.
The prosecutorial service had two kinds of
prosecutors. The first category included prosecutors appointed by the
Government. These were public prosecutors for the district, for special cases,
and public prosecutors ex officio. The other category included public
prosecutors appointed by the district magistrate. In the district, there were
four types of prosecutors: (i) district public prosecutor, (ii) deputy public
prosecutor, (iii) deputy superintendent of police (legal), and (iv) inspector
of police (legal). Due to having two categories of prosecutors, administrative
control over and funding of the prosecutorial service were fragmented. While
the Home Department had sole authority to confer powers on all categories of
prosecutors, administrative control belonged to different departments. Police
prosecutors were under the administrative control of the Home Department,
whereas all other prosecutors were under the Solicitor wing of the Law
Department. Consequently, funding for the prosecutorial service also came from
these two departments. The conflict did not end here. Having police prosecutors
also gave rise to other issues.
The main function of the police is to prevent the
commission of crime by (i) collecting relevant information, (ii) providing
security to localities, (iii) registering crimes, (iv) preserving evidence, and
(v) identifying and protecting the witnesses of crime. On the other hand,
investigation of a crime should be performed by a more professional and
specialized agency. In the case of police prosecutors, delineation of police
and prosecutorial duties are blurred and police prosecutors are burdened with
a daunting combination of functions. This situation led to a prosecutorial
service beset with institutional, organizational, human resource, and
budgetary problems which hampered its efficiency, competence, and
professionalism.
The gravity of the prosecutorial service problems in
Pakistan can be perceived from the situation in Punjab, where greater
statistical data are available. There are 45 district attorneys, 34 sessions
courts, 175 deputy district attorneys, 145 assistant attorneys (doing only
civil work as government pleader), 251 additional sessions judges, 46deputy
superintendents of police (legal), and 529 inspectors for 688 magistrate
courts.1 Thus, there are 575 police prosecutors under the administrative
control of the Home Department and only 336 non-police prosecutors under the administrative
control of the Solicitor wing of the Law Department. Of the total number of
district attorneys, 75% are recruited from deputy district attorneys and 25%
from deputy superintendents of police among the deputy district attorneys, 75%
are recruited from assistant district attorneys and 25% by initial recruitment.
The posts of deputy superintendent-legal are gained only by promotion, with no
additional qualifications required, while. the post of legal inspector is
occupied only by initial recruitment. A legal inspector must have a law degree.
No
standard is provided for regular assessment of the performance of the public
prosecutors. The closest form of assessment is an adverse remark in court
judgments or opinions of the district magistrate. The statistics of Faisalabad
(previously known as Layalpur), a district in Punjab, shows that, in 2002,
17,588 criminal cases were registered, of which (i) 15,960 were filed in court,
(ii) 588 cancelled, (iii) 1,040 remained untraced, (iv) 4,073 resulted in
conviction, and (v) 1,083 ended in acquittal. There are no available data on
the average time required to take a case to the court for trial after its
registration. Such data would reflect the quality of investigation.
In 2003, pursuant to the Access to Justice Reform
Project, the provinces decided, after examining all the available models, to
have an independent prosecution service operating under a statute functioning
independently subject to policies of transparency and accountability. A draft
law, the Criminal Prosecution Service (Constitution, Functions and Powers)
Act, was proposed with the objective of establishing a criminal prosecution
service to ensure prosecutorial independence, effective and efficient prosecution
of criminal cases, and better coordination in the criminal justice system. The
draft law, which would be more appropriately referred to as a model law,
provides for (i) independence of the prosecutorial service; (ii) exclusive
exercise of investigative functions by a separate wing of the police; (iii)
effective mechanism of supervision, monitoring, and evaluation; and (iv)
Transparency in recruitment and accountability to civil society.
In 2003, pursuant to the Access to
Justice Reform Project, the provinces decided, after examining all the
available models, to have an independent prosecution service operating under a
statute functioning independently subject to policies of transparency and
accountability.
As an
independent statuary body, the prosecutorial service will not be subject to the
control or direction of the executive department in which it is under. The
department’s role will be confined to that of a coordinator, facilitator, and
resource provider. By placing the entire prosecution service under the Home
Department, the draft law resolves the issue of duality of administrative
control. Separation of investigative functions of the police would improve
efficiency competence, and professionalism. In addition, the draft law
provides for effective consultation and supervision within the proposed
prosecutorial service and by an independent outside agency called the inspectorate
of the Prosecution Service.2 The recruitment to the service is to be
done through an open competitive examination conducted by the Public Service
Commission, a credible recruitment body for all the services of the province.
As a means of evaluating and monitoring performance, the prosecutor general
will be required to submit annual reports which are to be laid before the
Assembly and made available to the public.
The prosecutorial service is to be headed by
prosecutor general, with additional deputy and assistant prosecutors general.
In the districts, there would be district public prosecutors, assistant district
public prosecutors, and such other public prosecutors as may be appointed by
the Government or prosecutor general from time to tire. Their duties would
extend beyond conducting cases in courts to supervising and guiding their
colleagues and subordinates and the officers investigating the cases.
Recruitment up to the level of additional prosecutor general will have to be
made through the Public Service Commission on the basis of competitive
examination. The police registering the criminal case, the police investigating
the case, and the police filing the interim or final report will all be placed
under effective.
Supervisory
control of the district public prosecutor. The district public prosecutor is
to act as member of the Criminal Justice Coordination Committee constituted
under Article 110 of Police Order 2002. This would enable the representative of
the agency to effectively participate in the collegiate functioning of the
district administration.
The draft law was intended to override all other laws
related to the same matter. Its outstanding features are (i) primacy of its
provisions over all related laws (Section 21); (ii) nonexpendable secure tenure
of 4 years to the director general of prosecution, with protection of
emoluments, etc. (Section 7); (iii) initial recruitment at the lowest tier
through a transparent and established procedure (Section 6); (iv) reporting to
the Assembly within 2 months of the submission of annual report to the
Government which makes the report a public document, to reflect accountability
to the Parliament and to the people (Sections 1 2 and 18); (v) provision for
periodical independent monitoring and evaluation of the service (Section 13);
(vi) collegiate cooperative functioning for achieving common goals (Section 12
[9]); (vii) reactivation of the magisterial functions under Sections 1 56 and 1
57 of the Criminal Procedure Code; and (viii) effective oversight over
investigation (Sections 8 and 9).
This draft law has now been enacted into law in the
provinces: (i) Punjab enacted the Punjab Criminal Prosecution Service
(Constitution, Functions and Powers) Act 2006 (Act law Of 2006) on 8 April
2006; (ii) Sindh promulgated the Sindh Criminal Prosecution Service
(Constitution, Functions, and Powers) Ordinance 2006 on 26 July 2006; (iii)
Balochistan promulgated the Balochistan Prosecutorial Service (Constitution,
Functions, Powers) Act VI of 2003 on 17 October 2003; and (iv) North-West
Frontier Province (NWFP) promulgated the North-West Frontier Province Prosecution
Service Act of 2005 on 29 January 2005. The laws enacted by Balochistan, NWFP,
and Punjab incorporated most of the provisions of the draft law except for
Section 13 of the draft law.
Clearly, Pakistan is on its way to reform in the right
direction. However, as with any reform effort, bottlenecks are to be expected.
It is, therefore, necessary to prepare for potential issues and obstacles so
that the reform can proceed. As such, several recommendations are made here.
First, it is crucial to have strong-willed leaders
who would really implement the reform agenda and a vigilant society who would
exert sufficient pressure on their leaders. In theory sepa ration of the
investigation from the executive and protocol duties of the police has taken
place but, in practice, this has yet to be fully implemented. It is, therefore,
essential that all the authorities, the Solicitor wing of the Law Department,
the prosecution service, the Home Department, the police, the courts
administering criminal justice, and civil society cooperate to carry this
reform through. (Constitution Functions and Powers)
Second, there is a need to build capacity. Inasmuch as
the separation of the prosecutorial service and the police is both a cause and
an outcome of specialization of functions, both agencies must increase their
respective capacities to perform their functions ably. Crime is becoming so
sophisticated and technical that training and education should be made a part
of the new system.
Third, the reform process should be monitored closely
for at least 2 or 3 years. In this way, not only the individuals involved get
guidance,
It is crucial to have strong willed
leaders who would really implement the reform agenda and a vigilant society who
would exert sufficient pressure on their leaders. In theory, separation of the
investigation from the executive and protocol duties of the police has taken
place but, in practice, this has yet to be fully implemented.
But
the whole system is also improved. Sufficient provision has been made for
reporting and oversight within the department but this has to be intensified
as a departmental practice during the first 2 or 3 years.
Fourth, all the provisions of the draft law and
procedure directed toward securing transparency and accountability should be
strictly enforced and new methods of achieving it should be devised. Such
transparency and accountability should not be limited to superiors within the
department but should extend to civil society. One way of doing this would be
through the issuance of semiannual press releases on its performance without,
of course, encroaching on privacy or court processes.
Fifth, the system should encourage performance beyond
the call of duty and instill the willingness to improve skills. This can be
done through a system of recognition and reward.
Apart from the foregoing, other issues are likely to
surface in the course of implementing the reform agenda. While not all issues
can be anticipated, addressing issues that can already be foreseen beforehand
would serve as safety nets when new issues arise.
America Prosecution System
United
States
In the United States the director of any such offices
may be known by any of several names depending on the legal jurisdiction (e.g.
County Attorney, Prosecuting Attorney (in Michigan), County Prosecutor, State
Attorney, State’s Attorney, State Prosecutor, Commonwealth’s Attorney (in
Virginia and Kentucky), District Attorney, District Attorney General (in
Tennessee). City Attorney, City Prosecutor or U.S. Attorney) and may be either
appointed or elected.
In
the Federal Government of the United States, the Attorney General is a member
of the Cabinet and as head of the Department of Justice is the top law
enforcement officer and lawyer for the government. The attorney general may
need to be distinguished from the Solicitor General, a high Justice Department
official with the responsibility of representing the government in the Supreme
Court. In cases of exceptional importance, however, the Attorney General may
choose to represent the government himself/herself in the Supreme Court.
France Prosecution System
France
In France, the prosecutor, or Procureur de la Republic (or Procureur General in an Appeal Court or Avocet General in the Court of Cassation) is assisted by
deputies (substitutes). He
opens preliminary enquiries, and if necessary asks for the nomination of an
investigating magistrate (a Juge d’ Instruction)
to lead a judiciary information. In the case of information led by a
judge, the prosecutor does not lead the enquiries, but simply lays down the
scope of the crimes that the judge and law enforcement forces investigate upon;
he may, like defense attorneys, request or suggest further enquiries. During a
criminal trial, the prosecutor has to lay the case in front of their of fact
(judges or jury). He generally suggests a certain sentence, which the court has
no obligation to follow — the court may decide on a higher or lower sentence.
The procurer has also some
other duties regarding more generally the administration of justice.
Problem of Bangladesh in Prosecution
System
The
politics of prosecutors
As if
the deliberate non-independence of judges alone was not enough of a problem,
the government of Bangladesh also plays havoc with the way that cases are
prosecuted. Public prosecutors are political party playthings. Each time a new
government comes to power—that is, each time power rotates from one of the two
main parties to the other— all of the public prosecutors and assistant public
prosecutors in the country are replaced, from attorney general down. They carry
on until the next power flipflop, and again the other side puts its own people
back in. Prosecutors are also thrown out during a government’s tenure if they
dissatisfy the whims of a local member of parliament, a minister, or some other
political heavy. Their appointment and job security is not determined by their
ability or professionalism but by the extent to which they have served the
financial and political interests of the appointing party, its leaders and
followers.
The
obvious consequence of this mad system of appointment and promotion is that
there is no building of a functioning institution and tradition of good
prosecutors. They do not accumulate experience or build an institutional legacy
to pass from generation to generation as they are in and out the door every few
years. The skills needed for proper prosecuting do not develop, and instead
political bias is the sole determining factor. Prosecutors simply make the most
of the time that they have in their positions to benefit themselves and their
patrons. (The prosecuting and investigating branches also are completely
detached. If the police do not investigate a crime, the prosecutor has no
responsibility. Most of the time public prosecutors accept charge sheets
prepared by police officers solely because of bribes or other external
pressure. They will only challenge the police when there is a direct conflict
between the police and their political masters. Under any circumstances, in
most instances the police will also simply choose to go with whatever the
political party in power at the time wants and expects of them. As long as they
can keep making money and getting away with whatever else they are up to, they
adopt a mercenary approach.
(The
March 1999 bomb blasts case is a good example of all these problems with
prosecutors and politics in court cases. Around midnight on March 6 that year,
two explosions killed ten persons and injured around a hundred attending a
cultural programme in Jessore. More than ten of the wounded suffered permanent
injuries. The same night Sub Inspector Abdul Aziz lodged two cases with the
district police station. Assistant Superintendent of Police Dulal Uddin Akand
in the Criminal Investigation Department was assigned to investigate. Finally,
in December ASP Akand laid charges against 24 persons, including a top leader
of the BNP (later a government minister), Tarikul Islam. Other persons
connected to the BNP, which was then in opposition, were also named:
In
response, Islam submitted a petition to the court seeking to get his name
removed from the charge sheet, which was finally done by the Appellate Division
of the Supreme Court on 12 August 2003. Only then could the trial proceed. On
28 June 2006, with the BNP in power, the Special Tribunal of the Session Judge
of Jessore released all of the alleged perpetrators unconditionally. Judge Abut
Hossain Bapari said that the prosecution was completely “evidence-free” and
proposed that “the investigating officer should be prosecuted for preparing a
false charge sheet”, the accuracy of which the prosecutor had failed to verify.
He gave as an example that on 19 January 2006, ASP Akand admitted in court to
having forced five of the accused and seven witnesses to sign blank papers
which were used to construct fake testimonies. None of those persons were ever
produced before magistrates. The officer also admitted that he had intended to
use the case to frame Tarikul Islam and other BNP members.
After
the verdict, a discouraged victim who saw that among the group there were
persons who got off because the police messed up the case by dragging in
political opponents of the government was reported as saying that, “1 have lost
one of my legs, ten people died and more than 100 were injured like me. Now the
killers are doing victory lap around the town. What have we got out of the
trial?” This is the question that each and every helpless person asks as they
watch killers, torturers and rapists leaving the court, or cases destroyed by
political interference, while the jails are packed to the ceiling with
innocents. Although the judge in this case sanctioned the investigating police
for wrongdoing, there was nothing to be said of the prosecutor. The prosecutor
has no obligation to check facts and allegations before taking a case to court.
Even if a prosecutor goes in “evidence-free”, it is other people who have the
problems. The prosecutor feels answerable only to his party bosses. He does not
share blame when truth is distorted. Nor do politicians who get targeted by
such practices take initiatives to change the system: after all. When they are
in power, they hope to do the same to their rivals.
Facility of India Prosecution
The Indian Model
In one of its reports, the Law Commission of India
pointed out the inadequacy of public prosecutors and recommended measures to
ensure that there are as many prosecutors as there are criminal courts. In the
case of P Ramachandra Rao (2002,
4 5CC 578 pr. 20), the Supreme Court of India had occasion to comment that the
absence of, or delay in appointment of, public prosecutors caused trial delay.
Accordingly. India established its federal legal services under the executive
branch and framed Cadre and Recruitment Rules of the Department of Prosecution
and Government Litigation. The rules provide for direct recruitment of
assistant public prosecutors (APPs) through a qualifying written examination
followed by viva voce voting conducted by the Public Service Commission. An
APP is required to have a law degree and 2 or 3 years of practice. All other
appointments in the service are by promotion. Promotion as senior APP requires
a minimum of 5 years of service as APR Another 5 years of service as senior APP
is required for promotion as public prosecutor. The public prosecutor can be
promoted to joint director of prosecution after satisfying 3 years of service
as public prosecutor. Another 3 years of service as joint director is required
to be eligible for promotion to the post of Director of Prosecution.
Isle
of Man
In the Isle of Man, Her Majesty’s Attorney
General is a Crown appointment and Mr. Attorney sits in the Legislative Council
of the Isle of Man, ‘cx office’.
Facility of America Prosecution
OFFICE OF THE ATTORNEY GENERAL
The position of Attorney General was created by the
Judiciary Act of 1789. In June 1870 Congress enacted a law entitled “An Act to
Establish the Department of Justice.” This Act established the Attorney General
as head of the Department of Justice and gave the Attorney General direction
and control of U.S. Attorneys and all other counsel employed on behalf of the
United States. The Act also vested in the Attorney General supervisory power
over the accounts of U.S. Attorneys and U.S. Marshals.
The mission of the Office of the Attorney General is
to supervise and direct the administration and operation of the Department of
Justice, including the Federal Bureau of Investigation, Drug Enforcement
Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives, Bureau of
Prisons, Office of Justice Programs, and the U.S. Attorneys and U.S. Marshals
Service, which are all within the Department of Justice.
The principal duties of the Attorney General are to:
• Represent or superset the representation of the
United States Government in the Supreme Court of the United States and all
other courts, foreign and domestic, in which the United States is a party or
has an interest as may be deemed appropriate.
• Perform or supervise the performance of other
duties required by statute or Executive Order.
OFFICE OF THE DEPUTY ATTORNEY GENERAL
On May 24, 1950, Attorney General J. Howard McGrath
created the Office of the Deputy Attorney General (ODAG).
The mission of ODAG is to advise and assist the
Attorney General in formulating and implementing Department policies and
programs and in providing overall supervision and direction to all
organizational units of the Department.
The major
functions of the DAG are to:
• Exercise all the power and authority of the
Attorney General unless any such power or authority is required by law to be
exercised by the Attorney General personally or has been specifically delegated
exclusively to another Department official.
• Except as assigned to the Associate Attorney
General by 28 CFR § 0.19(a)(1), exercise the power and authority vested in the
Attorney General to take final action in matters pertaining to:
• Administer the Attorney General’s recruitment
program for honor law graduates and judicial law clerks.
• Coordinate departmental liaison with White
House staff and the Executive Office of the President.
• Coordinate and control the Department’s
reaction to civil disturbances and terrorism.
• Perform such other activities and functions as
may be assigned from time to time by the Attorney General.
OFFICE OF THE ASSOCIATE ATTORNEY GENERAL
The Office of the Associate Attorney General (OASG)
was created by
Attorney General Order No. 699-77 on March 10, 1977.
As the third-ranking official at the Department of
Justice, the AAG is a principal member of the Attorney General’s senior
management team.
The major
functions of the ASG are to:
Legal Encyclopedia
This entry contains information applicable to United
States law only.
Attorney General
The attorney general is head of the U.S. Department of
and chief law officer of the federal government. He or she represents the
United States in legal matters generally, and gives advice and opinions to the
president and to other heads of executive departments as requested. In cases of
exceptional gravity or special importance, the attorney general may appear in
person before the U.S. Supreme Court to represent the interests of the
government.
As head of the Department of Justice, the attorney
general is charged with enforcing federal laws, furnishing legal counsel in
federal cases, construing the laws under which other executive departments act,
supervising federal penal institutions, and investigating violations of federal
laws. The attorney general also supervises and directs the activities of the
U.S. attorneys and U.S. marshals in the various judicial districts. (U.S.
attorneys prosecute all offenses against the United States, and prosecute or
defend, for the government, alt civil actions, suits, or proceedings in which
the United States is concerned; U.S. marshals execute all lawful writs,
processes, and orders issued under authority of the United States.)
The office of the attorney general was created by the
First Congress in the Judiciary Act of 1789 (An Act to Establish the Judicial
Courts of the United States, ch. 20, § 35, 1 Stat. 73, 92-93). The First
Congress did not expect the attorney general—a part-time employee with scant
pay, no staff, and little power—to play a major rote in the emerging federal
government. As the members of the First Congress established a system
Facility of France Prosecution
In
France, the prosecutor, or Procureur
de la Républic (or Procureur
Général in an Appeal Court or Avocat
General in the Court of Cassation) is assisted by deputies (substitutes). He opens preliminary
enquiries, and if necessary asks for the nomination of an investigating
magistrate (a Juge d’ Instruction) to
lead judiciary information. In the case of information led by a judge, the
prosecutor does not lead the enquiries, but simply lays down the scope of the
crimes that the judge and law enforcement forces investigate upon; he may, like
defense attorneys, request or suggest further enquiries. During a criminal
trial, the prosecutor has to lay the case in front of the trier of fact (judges
or jury). He generally suggests a certain sentence, which the court has no
obligation to follow — the court may decide on a higher or lower sentence. The procedure has also some other duties
regarding more generally the administration of justice.
How
advantage should apply:
The
Prosecution Service of the State of Andhra Pradesh
To get a complete picture of the prosecutorial service
in India, one might look into the prosecution scenario in a southern State as
well. The State of Andhra Pradesh had similar prosecution machinery like the
one in Haryana before 1974. The Directorate of Prosecution, creates on May
1986, serves under the Law Department and performs the following functions:
(ii) Tenders
advice to other departments like Excise, Commercial Taxes, etc.;
(iii) supervises the
work and exercises control over all the PP5 in the State except the PP of the
High Court;
(iv) Advises the
Government where necessary with regard to filing of appeals in criminal cases;
and
(v) Scrutinizes
charge sheets in cases where innocent persons are believed to have falsely
been implicated and renders advice to the concerned PPs.
Nearly 400 officers in
different ranks form the prosecuting machineryin the State. The prosecuting
agency consists of seven categories of ranks: (i) Director of Prosecution; (ii)
Additional Director of Prosecution; (iii) PPs/Joint Directors; (iv) Additional
Public Prosecutor-Grade I/Deputy Director; (v) Additional Public
Prosecutor-Grade II; (vi) Senior APP; and (vii) APR
The duties of the APPs include:
(i) Prosecuting
cases filed not only by the police but also by other departments such as
Excise, Commercial Taxes, Forest, Food and Drug Administration, etc.;
(iii) Prosecuting criminal cases pending before
collectors/assistant collectors;
(iv) Ensuring that the charge sheet is legally sound
and rendering advice on whether more information or further probe is necessary
on any matter;
(vi) Expediting resolution of pending cases in
consultation with SHO and other officials;
(vii) Maintaining cordial relations with the police,
the courts, department officials, and members of the Bar;
(viii) assisting the court in a fair and impartial
manner by giving considered views;
(ix) submitting periodic statements of work,
at-tending meetings held by the directorate for review of work, furnishing
required information, and appraising problems encountered; and
It is interesting to note some of the deficiencies of
the prosecution machinery in Andhra Pradesh:
(i) The case
records continue in the custody of police even after filing the charge sheet.
These are brought to court on the day of hearing. This denies the prosecutor
the opportunity to go through statements or to brief the witnesses.
(iii) There is no
proper accommodation or support service in the court complex.
(iv) Lack of separate courts for criminal cases leads
to prosecutors remaining idle when the courts conduct civil cases. There is a
need for more exclusive criminal courts.
(vi) Service of
summons on witnesses by police personnel leads to considerable delay.
(vii) There is no training given to the prosecutors.
OFFICE
OF THE DEPUTY ATTORNEY GENERAL
On May 24, 1950, Attorney General J. Howard McGrath
created the Office of the Deputy Attorney General (ODAG).
The mission of ODAG is to advise and assist the
Attorney General in formulating and implementing Department policies and programs
and in providing overall supervision and direction to all organizational units
of the Department.
The major functions of the DAG are to:
1. The employment, separation, and general
administration of personnel in the Senior Executive Service and of attorneys
and law students regardless of grade or pay in the Department;
2. The appointment of special attorneys and
special assistants to the Attorney General (28 U.S.C. 515(b));
3. The appointment of Assistant United States
Trustees and fixing of their compensation; and
4. The approval of the appointment by United
States Trustees of standing trustees and the fixing of their maximum annual
compensation and percentage fees as provided in 28 U.S.C. 586(e).
England
and Wales
The Attorney General for England and Wales is the
chief legal adviser of the Crown in England and Wales and a member of the
Government. The Attorney General, with the assistance of the Legal Secretariat to the Law Officers provides
legal advice to the Government of the day. By convention, this legal advice is
available to subsequent
governments, unlike the papers of other ministers.
The current Attorney General is Lord Goldsmith QC. He
is assisted by the Solicitor General for England and Wales, currently Mike
O’Brien MP. Under the Law Officers Act 1997, the Solicitor General may do
anything on behalf of, or in the place of, the Attorney General and vice versa.
Which should utilized from India,
Pakistan, America
The Indian Model
In one of its reports, the Law Commission of India
pointed out the inadequacy of public prosecutors and recommended measures to
ensure that there are as many prosecutors as there are criminal courts. In the
case of P Ramachandra Rao (2002,
4 5CC 578 pr. 20), the Supreme Court of India had occasion to comment that the
absence of, or delay in appointment of, public prosecutors caused trial delay.
Accordingly, India established its federal legal services under the executive
branch and framed Cadre and Recruitment Rules of the Department of Prosecution
and Government Litigation. The rules provide for direct recruitment of
assistant public prosecutors (APPs) through a qualifying written examination
followed by viva voce voting conducted by the Public Service Commission. An
APP is required to have a law degree and 2 or 3 years of practice. All other
appointments in the service are by promotion. Promotion as senior APP requires
a minimum of 5 years of service as APR Another 5 years of service as senior APP
is required for promotion as public prosecutor. The public prosecutor can be
promoted to joint director of prosecution after satisfying 3 years of service
as public prosecutor. Another 3 years of service as joint director is required
to be eligible for promotion to the post of Director of Prosecution.
The Pakistan Model
Pursuant
to the Access to Justice Program funded by the Asian Development Bank, reform
in a larger but coordinated sector is being undertaken in., Pakistan. A good
part of it is the separation of the investigative functions of the police from
their other duties. This allows the investigation to become more focused,
professional, and effective in contributing to the criminal justice system. After
examining various models, a model draft acceptable to all four provinces was
prepared and presented in their respective provincial assemblies. The
objective of the draft Criminal Prosecution Service Law is to establish a
Criminal Prosecution Service to ensure prosecutorial independence, effective
and efficient prosecution of criminal cases, and better coordination in the
criminal justice system. The service is to be headed by a prosecutor general,
with additional deputy and assistant prosecutor general as subordinates.
In the districts, there would be district, deputy, and
assistant district public prosecutors, and other public prosecutors as the
prosecutor general may appoint. Recruitment up to the level of additional
prosecutor general would have to be made through the public service commission
based on a competitive examination. The police registering the criminal case,
the police investigating the case, and the police filing the interim or final
report are all placed under the supervision and control of the district public
prosecutor. The prosecutor general is required to submit annual reports which
are to be laid before the Assemble US Model
In
the United States, criminal justice is primarily a state subject. The
prosecutorial service is completely independent of the police or the executive.
Prosecution is conducted by a district attorney assisted by attorneys known as
prosecutors. Every county has one district attorney, a lawyer, elected by the
people for 4 years. The district attorney has absolute discretion on whether
to prosecute an offender and this decision cannot be contested, the consent of
a jury is sought before filing the case in court only when the district attorney
is of the opinion that the offender must be prosecuted. Even then, the jury
rarely withholds consent.
Concluding Remark:
Above
mention reforms are to be made in the prosecution department of Bangladesh in
the light of the advancement made by other continues in the same direction
deforms are very essential. Only by reforms prosecution department are to be successful.
Bangladesh prosecution department is not well and appropriate. These reforms
must need. We want a perfect prosecution system. If we follow America, India,
Pakistan, France prosecution system we want to see that their have a suitable
prospective on system. Their have a rice prosecution department we should
follow their prosecution department. If we follow their prosecution department
we build a great prosecution department. Prosecution department is the most
important in trial. For justice prosecution department should impartial influence.
In Bangladesh P.P App are to be appointed by Govt. Political party opinion.