A lawyer died
His wake was big,
The cortege long.
Seems that he had
Done no wrong.
He lay in state,
Seemed free of sin,
But in hand, each mourner,
Had a pin.
Each pricked the corpse,
No word was said,
They just made sure,
The man was dead.
Readers are free to decide on the veracity. Lawyers get a bad name because our system of litigation is adversarial. One person has to lose and, therefore, the other’s advocate becomes the villain. No one faults the adversary himself. Always the lawyer.
Sometimes, however, the lawyer deserves to be vilified. Courts decide matters on proof. Documentary proof is best. Followed by verbal testimony and cross-examination. Almost every time proof exists; yet, often, the courts are unaware of its existence. A decision by a court, in such a case, may be flawed. Who, then, is to be blamed?
Our laws require that all proof must be put on the table; even if is adverse to one’s interest. This follows from the belief that the primary duty of a court of law is to find the truth. Orders, judgements, convictions, acquittals, awards, fines, dismissals—all flow from that.
What is stated above must be news, or anathema, to our readers. The standard reaction of most litigants is: ‘Why should I produce this as evidence?’, when asked to present the inconvenient truths. But the law demands it. Hide-and-seek is not a game that courts play. They can come down heavily on those who conceal vital evidence. The same is also true with concocted proof and perjury.
Public prosecutors are appointed by the State—meaning the government—to conduct criminal trials. Their results are showcased for all to see, especially in high publicity issues. Often, they become superstars. But what if they fail? That is not palatable to most lawyers. They will die a thousand deaths for a conviction. It is this pressure that leads some astray, and the police is often there to help with manufactured proof. You be the judge in these trials.
a) Mr X knows that his opponent, Mr B, has some vital documents that will prove X right. B wants to hide them. X asks the judge to force B to produce the important proof. What can the judge do?
b) X says that he needs some documents to prove his case but does not have them. B has them. What should B do?
c) A man is convicted because the prosecutor did not reveal all he knew about the man’s innocence. Later on, the proof is out; but, by then, the man has spent 18 years in prison. Can the prosecutor be punished?
In the first case, if the judge demands the papers from B, B will have to produce them. Otherwise, B can lose his case. He may also be held in contempt, obstruction of justice and wrongful harassment of X, beside a host of other crimes.
In the second case, it is the duty of B to inform the court that B has the documents with him and will produce them, not to help the opponent, but to ‘assist the court’. We did exactly that a few days ago, in a civil case.
The third is an example of many such trials culminating in wrongful imprisonment. After a recent American study, 20% of those convicted were set free; all victims of malicious prosecution. Many of the affected sued the government agencies and were compensated. Unfortunately, only ONE prosecutor was punished. A low-level functionary, he lost his licence to practise. That’s all! Faced with similar situations, what can litigants do? They must ask their lawyers to apply to the court for documents withheld by the other side. The law permits this and it is codified in Order 11, Rule 21 of The Code of Civil Procedure. It can save months of delay.
It’s a law just waiting to be used.