The News International Pakistan http://archive.thenews.com.pk/TodaysPrintDetail.aspx?

?ID=64419&Cat=4&dt=8/25 /2011 Technology for Justice By Saman Ghani Khan Published on Thu, August 26 2011 Karachi

Paralysed under the piercing glare of the man tied in chains standing a few feet away from her, six-year-old *Neha could not stop the wave of utter devastation and fear from gripping her when the prosecutor asked that she identify her rapist. Too young to even grasp the meaning of the act itself, instead of pointing out the pedophile present in the court room, she began to cry hysterically. In addition to her failure in identifying her tormentor, the prosecutions eyewitness refused to testify out of fear of retaliation from the defendants gang. The accused was thus acquitted.

Nehas case is but one of hundreds of trials that are mishandled. In a sensitive case like this in which the victim is of such a tender age, justice may have been better served if the accused was not present in the courtroom at the time of Nehas testimony. But that would have been difficult given that sections 353 and 356 of the Criminal Procedure Code (CRPC) dictate that evidence should be recorded in the presence of the accused and that a witnesss testimony is recorded in the presence of the judge, according to Barrister Salman Javed Mirza.

However, there is group of people which includes NGOs and lawyers who believe that a computerised system of video conferencing would remove the necessity of having the prisoner physically present during his or her court hearing without impending on the CRPC and a judges ruling granting permission would suffice. Judges have appeared reluctant to allow this technology in the absence of a specific amendment being passed in parliament.

Haji Mohammad Iqbal, the general secretary of the Innocent Citizens Welfare Trust (ICWT), filed a petition with the Sindh High Court in May 2011 for video conferencing to be permitted for recording evidence during court cases as well as ensuring the presence of the accused. The petitioners representative Advocate

Waqar Shahs main argument was that the physical presence of the accused or the witness was not a precondition for a criminal trial.

While speaking with The News, Shah recalled numerous trials, including murder cases, where justice was compromised based on the absence of key witnesses. There was one case in which the prosecution was relying on an eyewitness to convict a man accused of murder, but he was let off because the witness failed to show up in court, said Shah. He pointed to another case in which 2.2 kilograms of heroin were found hidden in one of the concealed compartments of a local airliner. The accused was affiliated with an international drug gang and he had used members of the flight crew to smuggle the narcotics onboard, but he was eventually acquitted because the prosecutions witnesses failed to testify.

The benefits of video conferencing are not restricted to criminal courts, as civil cases could also make use of this technology when an expert opinion is desired from someone who does not live in the same city or country, said Barrister Mirza. He added that the law was flexible in that Section 164 of the Qanun-e-Shahdat Order, 1984 allowed the use of modern technology, adding that judges need not be reluctant to rule in favor of video conferencing in the absence of an official amendment being passed. Shah and Mirza both agree that the drawbacks of using technology to expedite criminal proceedings are negligible compared to the benefits and it was the lack of education as well as imagination that was the main reason for not following the worlds example in using video conferencing. The Indian judiciary has allowed the use of video conferencing in hundreds of cases over the past six years, explained Mirza, adding that it was also permitted in neighboring China and many other Commonwealth countries such as England and Australia.

There are other ways one could argue in favour of the ICWTs petition, most of which point to the unquestionable economic advantage this technology offered. Over a hundred under-trial prisoners (UTPs) are transported from the citys jails on a daily basis in heavily manned police vans which have to make multiple trips due to the large number of people awaiting their respective trials, that can sometimes drag on for months and even years.

With video conferencing, the government could save on fuel as well as manpower because computers that are attached to a network can easily be set up at the jails as well as the courts for a onetime cost, thus freeing a significant amount of funds that can be put to more productive use. The entire process would be expedited with the use of technology, said Shah. While pointing to three vans exiting the City Courts compound, each accompanied by at least four police officers, he informed this scribe

that this was just the tip of the iceberg and that many more trips were destined for the day.

What is the need to subject these prisoners to the harsh conditions of the courts lockup facility? Shah questioned. An overwhelming stench of sweat and squalor inundated ones senses as one entered the City Courts lockup premises. Given the sheer volume of cases that the courts process in one day, the number of rooms that were available to accommodate hundreds of prisoners while they awaited trial was astonishing. Not to mention the fact that a hole in the ground in each cell was the sum total of their sanitation facilities.

As this scribe exited the lockup area, a group of prisoners walked by with their hands tightly tied together to a single set of chains and the scene was reminiscent of how slaves in many parts of the world were chained together in groups to prevent them from escaping. Shah added that sometimes the chain was so firmly wrapped around their wrists that their blood circulation was compromised.

Oddly, the same prisoners could later be seen enjoying a meal with their families outside the court room while they waited for the judge to summon them. The point here, many believe, is that there is no need to bring the prisoners to court in these conditions when technology is available to facilitate justice without all this hassle.

Shah mentioned that the authorities were building a larger lockup adjacent to the current facility, whose foundation had already been erected. But why should they spend millions of precious rupees when video conferencing is a more cost effective way of reducing the number of prisoners at the courts and relieving the load on the lockup, said Shah.

Video conferencing would be beneficial in criminal cases on the condition that both the prosecution and the defence agree on its use, said District Judge South Hasan Feroz. The judge pointed out a few possible drawbacks such as in the case of a witnesss testimony, the individuals demeanor played an important role in a judges ruling which was difficult to gage through a video. This technology would be particularly useful in the case of juveniles because I believe they should not be brought to the court while chained to adult prisoners. However, he did mention that an amendment would first have to be passed as the judiciary did not have the power to grant permission in the absence of legislation.

Money is not an issue, said Advocate Shah. Setting up the system would cost a fraction of the amount currently allocated to building the new lockup and we could appeal to various international organisations and donors who in the past have shown a great interest in improving Pakistans justice system, he added.

The constitution demands inexpensive as well as speedy justice for all citizens of Pakistan and video conferencing should thus be permitted without legislation, said Muhammad Aqil, president of the Karachi Bar Association (KBA). If we left everything to the parliamentarians, we would be waiting for years before any changes were made.

*Name changed to protect privacy