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Eliminating perjury

Ikram Sehgal writes from Karachi
JUSTICE is dependant upon the evidence brought before those dispensing justice. If the evidence is manipulated in any manner, the verdict given will be flawed. It stands to reason that for justice to be done, it is imperative to ensure the credibility of evidence. A witness deliberately making material false or misleading statement while under oath commits the offence of perjury. Not only in Pakistan, or in South Asia, but throughout the world, less so in the first world than in the third, perjury is regularly committed by those giving statements under oath. In the first world, serious notice is taken of perjury, and many are convicted and punished for it. One really wonders as to the record of such convictions in third world countries -- presumably the number would be abysmally low.
In the foregoing perspective, the situation is indeed deplorable in countries in South Asia. It is common knowledge that outside many subordinate courts professional touts can be found, ready to render “evidence” for a price. In many criminal cases, those investigating cases are subject to the disbursements by the highest bidder. It may not happen all the time, perjury is
taking place in enough of the cases for the situation to be considered catastrophic for the rule of the law. To put it bluntly, justice can be manipulated to suit those who have a reason to manipulate it, and have the means to do so. This subversion of the law has become endemic in many countries in varying degrees. Clearly, drastic corrective action is a crying need of time before justice becomes a prey to such a detestable practice.
Deliberate falsification of evi-
dence, mainly through fabricated documents and perjury, is no doubt punishable with imprisonment ranging from two to ten years and fine under stipulated provisions of Pakistan Penal Code, but, realistically, one may ask, do we have smoothly functioning infrastructure of law enforcement agencies and law courts to cope with this scourge?
Perjury must be punished, and salutary examples made. This is easier said than done. Where can a start be made, and by whom? To expect the government executive to do this would be asking for an impossibility. Some individuals may be honourable exceptions, but can they buck the system? The reprehensible malady of perjury can only be brought under control by reme-
dial action by the judiciary, and from a level not less than the superior judiciary. Recently, the Chief Justice of the Supreme Court of Pakistan Mr. Justice Iftikhar Muhammad Chaudhry, has set about enforcing a code of conduct among the superior judiciary. Why not also go after those who have brought false evidence under oath to the High Courts and the Supreme Court itself?
Those committing perjury must be punished by giving them stiff
imprisonments and heavy fines, according to the nature of the offence in a case. In criminal trials, the punishment could be exactly what the accused would have been given if the evidence had been held to be correct. If based on the statements of the witnesses committing perjury, the accused would go to the gallows, shouldn't those giving false evidence should face drastic punishment themselves? The punishment can only be marginally less for giving false alibis to those guilty, in court cases. The persons must be given punishment commensurate to those bearing false witness. No given formula can be used. The judge (or judges) must decide each case of perjury on merit and come down with a heavy hand against perjurers as well as their manipula-
tors and abettors.
Whenever a case is brought before any judicial forum, whether it is a subordinate court or a High Court or the Supreme Court, there are two sides to it. The lawyers are officers of the court and they are, under law and professional ethics, not supposed to be party to fabrication of, and tampering with, the evidence. If there is malfeasance of any kind, they are supposed to bring it to the attention of the law. How ,many of our lawyers, or for that
matter across the entire world, really report wrongdoing that comes to their knowledge? It is true that many lawyers will not take the case if they find evidence of malfeasance. Many others will fall back on the sacred nature of the lawyer-client relationship which holds that all facts disclosed are privileged communication that cannot be disclosed to a third party (or parties) if detrimental to the interests of the client. When a court decides in favour of one side, unless it is for technical reasons, it has effectively confirmed that the other side's case did not have credible evidence. What remedy is there with a superior court of law to order an enquiry so as to focus on the evidence brought by the losers? And what happens if an outside investigation agency finds that the
loser's evidence is credible, bringing into doubt the credibility of the material evidence on which the decision of a court is based?
No doubt the Superior Judiciary cannot be expected to become an interested party, but, for the sake of justice, why do they not form a committee that will choose at random some cases where they have some doubt about the evidence and ask outside agencies to give their expert opinion about the evidence presented under oath? If affidavits
have been given these can be verified as to their accuracy or otherwise, with the full weight of the superior judiciary being brought to punish false statements made under oath. Once this Review Committee has worked for some time, the Honourable Chief Justice can see for himself whether there is need for a permanent Review Committee or indeed for a procedure to turn to impartial outside investigation agencies whenever perjury is suspected. There could be at that time a comprehensive assessment of whether a permanent “Internal Affairs” set-up can be put into place.
While the statements that political leaders make are not made under oath, the fact remains that the masses expect their leaders to tell
the truth. There is a fine line between making promises and of stating facts that may not be entirely true but an outright lie. While the public does hold accountability of sorts by voting these making false statements and/or promises out of power, the judiciary must take suo-moto action against these leaders who make it their business to try and come to power by misrepresenting the truth.
The Superior Judiciary can ask for statistics about case from the lower courts, setting up an “analysis wing” under its jurisdiction to see the trend of the decisions of the subordinate lower courts, as to who gave the verdict, as to who were affected, as to how many verdicts were overturned in appeal, as to how many in the lower courts who turn a blind eye to this have been punished for perjury, etc., etc? Devising ways of ensuring that perjury, ostensibly for rewards, is punished at the grassroots level, is to crack down on the subordinate courts and make examples out of some of them. While this would be a part of a greater superior judiciary scheme to ensure that justice is fair, the punishment of those who allow perjury would have a very salutary effect down the line. Judiciary has a moral responsibility to ensure that the citizens of the country have a fair opportunity when they turn to the law for justice. When applied, justice must be fair and equivocal. This can only be done once rampant perjury is eliminated, and, if not eliminated altogether, at least contained.
Ikram Sehgal, a former Major of Pakistan Army, is a political analyst and columnist.