What reforms are to be made in the
prosecution department of Bangladesh in the light of the advancement made by
other countries in the same direction?
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.
Bangladesh
Govt. Lawyers System:
Strengthening
the public
Prosecutorial
Service in Bangladesh
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.
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
~re 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. ‘i/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 prosecutor general, with additional
deputy and assistant prosecutors 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, “[t]he 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.
3. India:
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.
Prior 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 remembrancer3 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, who 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. Directorate of prosecution of the state of Haryana |
||
|
Position |
Number of Staff |
Compensation |
|
Director of |
1 |
Rs 15 100—18 |
|
Joint Directors |
5 |
Rs 13 500—17 |
|
District Attorney |
50 |
Rs 1 0 000—1 5 |
|
|
(20 in courts in other departments) |
+ special pay |
|
Deputy District |
1 31 |
Rs 8 000—1 3 |
|
Assistant |
344 |
Rs 6 500—1 0 + special pay |
|
Source |
||
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 a 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:
(i)
Acts as legal advisor to the
Director General of Police and inspector General of Police;
(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.
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,
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.
(vii) There is no training given to the
prosecutors.
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 orAdditional 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 “gazetted 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.
To all APPs.
(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.
(ix) All
prosecutors should work in close cooperation with the police department and
render advice and assistance from time to time for efficient performance of
their respective duties.
(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.
(xi) The
Commissioner of Police and the special prosecutor may be empowered to hold
monthly review meetings of PPs and APPs for ensuring proper coordination and
efficient functioning of the prosecution system.
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 impleaded 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.
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.
4. 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
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.
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.
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.
5. 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.
6. France Prosecution System
France
In France, the
prosecutor, or Procureur de la
Republic (or Procureur General in
an Appeal Court or Advocate 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 thier 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.
7. Problem of Bangladesh in Prosecution System
The politics of prosecutors
As if the deliberate
non-independence ofjudges 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 md 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.
8. 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’.
9. 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:
positions and to positions
within the Department, including U.S. Attorneys and U.S. Marshals.
• 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:
• Advise
and assist the Attorney General and Deputy Attorney General on the formulation
and implementation of Department of Justice policies and programs.
• Supervise
the work of the Civil, Civil Rights, Antitrust, Tax, and Environment and
Natural Resources Divisions. The ASG also has oversight responsibility for the
Office of Justice Programs, the Office of Community Oriented Policing Services,
the Office of Tribal Justice, the Office of Dispute Resolution, the Office of
information and privacy the community Relations services, the Executive Office
for united states Trustees office on violence Against Women and the Foreign
Claims Settlement Commission.
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
10. Facility of France Prosecution
In France, the prosecutor, or Procureur de la Republic (or Procureur General in an Appeal Court
or Advocate 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.
(5) 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 a 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:
(i) Acts as
legal advisor to the Director General of Police and Inspector General of
Police;
(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.;
(ii) Providing opinion when sought by the police or
other departments on matters pending before the court or are under
investigation;
(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;
(v) Ensuring that the witnesses attend the court
and non-bailable warrants are executed in time by approaching the special
prosecutor if the SHO is not prompt in the assignment;
(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
(x) rendering advice to officials to determine
whether a case is fit for appeal, giving detailed reasons.
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.
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.
(6) 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 ac ceptable 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 prosecutor general, with additional
deputy and assistant prosecutors 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.
(7)
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. This reform 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.