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Prosecutors Stand for Rule of Law: Challenged Legality of Unlawful Orders! By Kashif Mirza

Byadmin

Jun 8, 2024

The writer is an

economist, anchor,

analyst and the

President of All

 Pakistan Lawyers’

 Federation

president@Pakistan

privateschools.com

An independent prosecution service department separate from the executive is essential for a fair and impartial justice system.  A recent writ petition has raised significant concerns about the authority and legality of actions taken by the Secretary of Public Prosecution Punjab. The petitioners, comprising senior prosecutors, have outlined their grievances and the legal basis for their challenge, who were appointed through the Punjab Public Service Commission (PPSC) under Section 8 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006. Since their appointment, they have diligently performed their duties and participated in training programs conducted by the Centre of Professional Development of Public Prosecutors (CPD). On November 13, 2023, the Secretary of Public Prosecution Punjab issued a notification constituting a committee to update and revise the syllabus for written examinations conducted by the PPSC. On April 3, 2024, the committee recommended a revised syllabus. Surprisingly, the Secretary of Public Prosecution Punjab directed the Director of CPD to arrange written tests and interviews as a test run of the new syllabus for each cadre of prosecutors. This directive aims to assess and grade already appointed prosecutors through written examinations by PPSC. Consequently, a schedule for these tests and interviews was issued, and emails were sent to all Punjab prosecutors to appear in the written examination as per the revised syllabus. The petitioners’ prosecutors have also raised several concerns about the legality and authority of certain actions taken by the Secretary of Public Prosecution. The petitioners, who hold various positions within the Punjab Criminal Prosecution Service, including Additional Prosecutor General, Deputy Prosecutor General, District Public Prosecutor, Deputy District Public Prosecutor, and Assistant District Public Prosecutor, have outlined their grievances and the legal basis for their challenge. The objection regarding the lack of legal authority is also raised by the petitioners who argued that the impugned orders lack legal legitimacy and are unsupported by law. The Prosecutor General of Punjab has unequivocally repudiated the unauthorized examination of prosecutors. The impugned actions undermine the independence and autonomy of the Punjab Criminal Prosecution Service, leaving the petitioners with no alternative but to invoke the extraordinary constitutional jurisdiction of the Honourable Court. There’s also a Violation of the Prosecution Service Act, 2006, through the impugned orders which violate specific provisions of the Prosecution Service Act, 2006. The petitioners have a strong prima facie case, with the balance of convenience in their favour, as the impugned orders are issued without legal authority and violate the established framework of the Prosecution Service Act, 2006. 

As the Act establishes an independent prosecution service, separate from the executive, to ensure prosecutorial independence and effective coordination within the criminal justice system. According to Section 5(2) and Section 6 of the Act, the administration of the service vests in the Prosecutor General, not the Secretary of Public Prosecution. Precedents Supporting Petitioners’ Claims include a Supreme Court judgment in the case of “Province of Sindh through Chief Secretary Sindh and others VS Prosecutor General Sindh Etc.” (2012 SCMR 307), which declared that the Prosecutor General is the competent authority over public prosecutors. The Secretary of Public Prosecution has no authority to interfere in the administration of the prosecution service. This judgment is binding under Article 189 of the Constitution of Pakistan and was followed by the Honourable Court in W.P No. 5336/2020 titled “Umer Farooq Vs Government of the Punjab through Chief Secretary Etc”. Interestingly, there’s also inconsistency with Examination Requirements that Section 8 of the Punjab Prosecutors Act, read with the Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007, stipulates that written examinations are required only at the time of initial appointment or promotion. There is no legal requirement to assess or grade already appointed prosecutors, having been inducted through competitive examinations conducted by PPSC. The impugned orders lack legal legitimacy and are unsupported by law. Resultant, the Prosecutor General of Punjab has also repudiated the unauthorized examination of prosecutors, due to the lack of jurisdiction of the Secretary Public Prosecution which the petitioners duly referenced with previous judgments and orders, such as W.P. No. 22545/2022 and W.P. No. 51440/2020, where the Honourable Court assumed jurisdiction and suspended operations of similar orders passed by the Secretary Public Prosecution, underscoring the Secretary’s lack of lawful authority in such matters. No doubt the petitioners, being public servants, lack alternative remedies, necessitating the invocation of constitutional jurisdiction to safeguard the independence and integrity of the Prosecution Service. As per law, the Prosecutor General is the competent authority over public prosecutors, and the Secretary of Public Prosecution has no authority in this regard. It’s also a violation of the Prosecution Service Act, of 2006, which establishes an independent prosecution service separate from the executive.

An independent prosecution service department separate from the executive is essential for a fair and impartial justice system. Pakistan can learn from global best practices and strengthen its prosecution service department’s autonomy and independence to ensure impartiality and fairness in prosecutions.

An independent prosecution service department separate from the executive is a crucial component of a fair and impartial justice system. Globally, many countries have established such departments to ensure prosecutorial independence and autonomy. Benefits of an independent prosecution Service: Ensures impartiality and fairness in prosecutions; Prevents political interference and bias; Enhances public trust and confidence in the justice system; Promotes accountability and transparency; and Encourages independent decision-making and autonomy. , the effects of an Independent Prosecution Service: Increased independence and autonomy for prosecutors; Improved public perception of the justice system; Enhanced credibility and legitimacy of prosecutions; Reduced political interference and bias; and strengthened rule of law and democratic governance. In contrast, Pakistan’s prosecution service department faces challenges in asserting its independence, highlighting the need for reform and strengthening its autonomy. Most countries, such as the United States, United Kingdom, Canada, Australia, and South Africa, have an independent prosecution service department separate from the executive. These departments are headed by a Director of Public Prosecutions or an Attorney General, who is responsible for making independent decisions on prosecutions. In Pakistan, the prosecution service department is headed by the Secretary Public Prosecution, who is a bureaucrat and not a prosecutor, leading to a lack of autonomy and independence. The key difference between Pakistan and other countries is the level of independence and autonomy granted to the prosecution service department. In Pakistan, the prosecution service department is under the control of the executive, which can lead to political interference and bias in prosecutions. In contrast, countries with independent prosecution service departments have a clear separation of powers, ensuring that prosecutions are free from political influence and bias. If we analyse, we can see that these prosecutors were appointed through the Punjab Public Service Commission (PPSC) under Section 8 of this Act. Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, which emphasizes the establishment of an independent prosecution service, separate from the executive, to ensure prosecutorial independence. These prosecutors have already participated in training programs conducted by the Centre of Professional Development of Public Prosecutors (CPD). So, the impugned notification has no legal strength and is unnecessary. Precedents also supporting petitioners’ claims, the Supreme Court Judgment in the case of “Province of Sindh through Chief Secretary Sindh and others VS Prosecutor General Sindh Etc.” (2012 SCMR 307), already declared that the Prosecutor General is the competent authority over public prosecutors, and the Secretary Public Prosecution has no authority in this regard. The Honourable Court followed the Supreme Court’s judgment in W.P No. 5336/2020 titled “Umer Farooq Vs Government of the Punjab through Chief Secretary Etc.” The Court’s order in W.P. No. 22545/2022, and the pending W.P. No. 51440/2020, also affirm the Secretary of Public Prosecution’s lack of authority. Section 8 of the Punjab Prosecutors Act, read with the Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007, stipulates that written examinations are required only at the time of initial appointment or promotion. No doubt, Prosecutors stand for the rule of law and rightly challenged the legality of unlawful orders of the Secretary of Public Prosecution, indeed Punjab Criminal Prosecution Service Act, 2006, also emphasizes the establishment of an independent prosecution service, separate from the executive, to ensure prosecutorial independence. In conclusion, an independent prosecution service department separate from the executive is essential for a fair and impartial justice system. Pakistan can learn from global best practices and strengthen its prosecution service department’s autonomy and independence to ensure impartiality and fairness in prosecutions.

By admin

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