Theoratical Framework for Reforming The Criminal Justice System in Pakistan

THEORATICAL FRAMEWORK FOR REFORMING THEORATICAL FRAMEWORK FOR REFORMING THE CRIMINAL JUSTICE SYSTEM IN PAKISTAN By Kamran Adil Police Service of Pakistan CONTEXT The latest Order of the Supreme Court of Pakistan in case titled Haider Ali and another v. the DPO Chakwal1, once again tried to address the 'fundamental issues of the Criminal Justice System2 in Pakistan. The Court has been pleased to pass fifteen directions3: each direction asking for a report from different offices. The effort is not the first of its kind by the Supreme Court of Pakistan. Earlier in Suo Motu Case No.3 of 20014 the Supreme Court of Pakistan passed a similar order in which thirteen directions5 were passed: each direction to different offices to undertake certain tasks and then to produce reports. Besides the Supreme Court of Pakistan, international non-governmental organizations have also attempted to study and examine the criminal justice system of Pakistan. One such example is the report styled as Reforming the Criminal Justice of Pakistan6 by the International Crisis Group. The Report is elaborate and addresses the structural and administrative issues. Likewise, reform reports on the basis of components of the criminal justice system have also emerged. The police reform, for example, has witnessed twenty one7 reports as per the report on the Police Organizations in Pakistan by the Human Rights Commission of Pakistan. Eleven reports on prison reforms were produced with little implementation8. Eight different approaches have been followed with respect to legal and judicial reforms9. The conceptual analysis of the criminal justice system of Pakistan, however, was not undertaken before embarking upon prescribing reforms; resultantly, the efficacy and the implementation is not yielding. In the West, on the other hand, efforts were made to conceptualize the criminal justice theory. Thomas J. Bernard10 has identified three most common 'bases for classification' of 'large body of knowledge' in the field of criminal justice. These three systems are: "The three most common bases for classification are (1) type of organization within the criminal justice system (e.g., police, courts, corrections); (2) underlying theoretical assumptions (e.g., consensus, conflict); and (3) predictor variables (e.g., individual, situational, organizational, community). In case of Pakistan, the classification has most often than not, been organized around the organizations/components involved in the criminal justice system. The other theoretical models have not been explored. In this write up, an attempt is being made to examine Pakistan's criminal justice system in the broader framework of category two i.e. with respect to underlying theoretical assumptions (e.g., consensus and conflict). In respect to consensual and conflict frameworks, different models have been presented, which may be used as a point of departure for further research in this area in Pakistan. This write up will first present briefly the models of criminal justice within the broader underlying sociological framework of consensus conflict; thereafter, it will present analysis of the criminal justice system vis- -vis the legal system of Pakistan. 1. MODELS OF CRIMINAL JUSTICE Three models of criminal justice may be interesting in the context of Pakistan. A brief resume of each may be useful as an introduction; these three models are: A-.PACKER'S MODELS OF THE CRIMINAL PROCESS Herbert L. Packer was a Professor of Law at the Stanford University in the US. His chef d'oeuvre 'the Limits of the Criminal Sanction' was written in 1964. In his writing, he wanted to help 'perceive the normative antinomy at the heart of the criminal law' whereby his chief purpose was to explain the philosophy of criminal law. For this purpose, he used two competing claims of values as two models about the criminal 'process' (and not as criminal justice). One, he called the Due Process Model, and the other, he called, the Crime Control Model. He presented the two models on purely academic grounds and to prove that he used all the disclaimers: that the models were just presented as 'an aid to analysis' and not 'as a programme for action'; that 'he wanted to give operational content to a complex of values underlying the criminal law'; that the actors in the criminal justice system--the lawmakers, judges, police, prosecutors, defense lawyers--may not ascribe to any of his given models in totality. Griffiths summarized the two models in his 1970 research article 'Ideology in Criminal Procedure or a Third Model of the Criminal Process' in the following words: "The Crime Control Model is based on the proposition that the repression of criminal conduct is by far the most important function to be performed by the criminal process. Criminal conduct must be kept under tight control in order to preserve public order. The primary concern is efficiency. The process must produce a high rate of apprehension and conviction, and must therefore place a premium on speed and finality. It should throw off at a nearly stage those cases in which it appears unlikely that the person apprehended is an offender and then secure, as expeditiously as possible, the conviction of the rest. To this end, a quick, accurate, and efficient administrative fact-finding role carried out by police and prosecutors should predominate over slow, inefficient, and less accurate judicial trials; and interference with this administrative process should be kept to an absolute minimum so as not to compromise the dominant goal of repressing crime." About the other Model, he stated: "The Due Process Model seems radically different. Its system of values revolves around the concept of the primacy of the individual and the complementary concept of limitation on official power. Because of its potency in subjecting the individual to the coercive power of the state, the criminal process must be subjected to controls that prevent it from operating at maximal efficiency. Power is always subject to abuse, and the Due Process Model implements anti-authoritarian values by limiting state power." B--GRIFFITHS' FAMILY MODEL As noted above, in 1970, John Griffiths of the Yale Law School attacked the Packer's Models of criminal process. He opined that quintessentially Packer had only offered one model, which was based on two alternate responses to the basic object of putting the offender 'in jail'...hence, punishment was the sine qua non of the theory underlying both the models. He argued that the two models did not cater to victims' perspective. He went as far as labeling the two models of criminal process as Battle Model. He argued that Packer's model hinged on battle ground mentality between the individual and the state. He offered his Family Model instead, which he illustrated in the following words: "When a parent punishes his child, both parent and child, know that afterwards they will go on living together as before. The child gets his punishment, as a matter of course, within a continuum of love, after his dinner and during his toilet training and before his bed-time story and in the middle of general family play, and he is punished in his own unchanged capacity as a child with failings (like all other children) rather than as some kind of distinct and dangerous outsider. The ideology of family-life on the place of punishment is contained in the straightforward and simple reply a parent gives to a child who is anxious about the fundamental relationship because of his guilt at an offense or his reaction to its punishment: of course I love you, but lust now I don't like you." He insisted that his proposed Family Model will use different vocabulary of categorizing conduct as a crime from the one used by the Battle Model of Packer. C--ROACH'S MODELS OF VICTIMS RIGHTS The third approach in relation to theory of criminal justice was advanced by Ken Roach, Professor of Criminology at the University of Toronto in his 1999 article 'Four Models of the Criminal Process'. His views may best be summarized in his own words: "Normatively, my punitive model of victims' fights affirms the retributive and expressive importance of punishment and the need for the rights of victims to be considered along with the rights of the accused. My non-punitive model of victims' rights attempts to minimize the pain of both victimization and punishment by stressing crime prevention and restorative justice. Discursively, both punitive and non-punitive models of 'victims' rights promise to control crime and respect victims, but the punitive model focuses all of its energy on the criminal justice system and the administration of punishment while the non-punitive model branches out into other areas of social development and integration. In short, the construction of models provides an accessible language to discuss the actual operation of the criminal process, the values of criminal justice, and the way that people think and talk about criminal justice." The punitive and non-punitive models of victims of Roach along with due process and crime control models of Packer form the four models of the criminal process .that have attracted discursive analyses by criminologists and lawyers alike. II - CRIMINAL JUSTICE SYSTEM OF PAKISTAN AND THE MODELS OF CRIMINAL PROCESS The term 'criminal justice system of Pakistan' may not accurately reflect the factual and legal position on the ground. On the legal plane, in the pre-Eighteenth Amendment to the Constitution of Pakistan 1973- scenario, the law and order was, in the exclusive domain of the provinces and the criminal law, criminal procedure and evidence (by virtue of item one of the defunct Concurrent List to the Fourth Schedule of the Constitution) exclusively fell in the remit of the provinces as far as the legislative competence of the provinces was concerned. On the appellate side, however, the leave to appeal to the Supreme Court of Pakistan on exceptional legal grounds was provided in the Constitution coupled with powers11 of the President to exercise clemency powers. In the post-Eighteenth Amendment, the scenario has changed. While the appellate powers of the Supreme Court and the clemency powers of the President are still intact, the Concurrent List has been abolished and the legislative competence related to criminal law, procedure and evidence now belongs to the federal and provincial legislatures alike12.The Constitution, however, provides that the federal criminal law will prevail over the provincial law in case of contrariness between the two legislations13. With this constitutional context, it may be noted that on the factual side, the administration of criminal justice begins and ends in a province or a territory. In these circumstances, cursory look at the Constitution of Pakistan shows that it is loaded with clauses that evince propensity towards the due process model in which, at least in theory, the primacy of individual is accorded more weightage than the state. In the first place, Article 4 of the Constitution of Pakistan provides for an ex post facto clause that requires a conduct to be criminalized formally before anyone could be held responsible for it. Likewise, Chapter 1 of the Constitution that deals with the Fundamental Rights has specific provisions that fortify the due process model: the security of person14, safeguards as to arrest and detention15, due process clause16, prohibition against retrospective punishment17, prohibition against double punishment18, prohibition against self-incrimination19 and dignity of man20. On the other hand, the Constitution of Pakistan has emergency provisions21 that provide strength to crime control model in exceptional circumstances. The punitive model for victims as proposed by Roach is also available in the legal framework (like Section 544-A of the Code of Criminal Procedure, 1898 for victims of criminal justice and sections 35 and 35-A of the Code of Civil Procedure, 1908 for civil justice). Likewise, the evidence for non-punitive model for victims is also available in the legal framework in form of corrections scheme provided in the Code of Criminal Procedure. It may, however, be noted that the evidence for punitive and non-punitive models for victims is sporadic and fragmentary. In the same manner, the crime control model can only upend the due process model in exceptional circumstances. With this state of affairs, it may be safe to infer that--may be unconsciously--the criminal justice system of Pakistan is more attuned to the due process model as postulated by Packer. In absence of any empirical evidence, if the inference of proximity to the due process model is assumed to be correct, then the apparent contradictory aspirations of Pakistan as a strong state and as a democracy do not reconcile with the legal framework as embodied in the Constitution of Pakistan. Being a strong state may need following the crime control model (especially with reference to terrorism); on the other hand, being a democracy (especially with reference to human rights) requires following due process model. The reconciliation of the contradictory aspirations of Pakistan and its criminal justice system may be a point of departure for scholarly research on this point; quality research on the topic may unlock future thinking on the subject. ______________________________________________________________________ 1. Order was passed in the Civil Petition No. 1282 of 2014 on 4th September, 2015 = 2015 SCMR 1724. The case was heard by three Member [contd.] Bench of the Supreme Court of Pakistan namely the then Chief Justice Jawwad S. Khawaja, Justice Dost Muhammad and Justice Qazi Faez Isa. The Order was authored by the Chief Justice Jawwad S. Khawaja himself. The case has not been disposed of. 2. Para 6 of the Order. 3. The directions include provision of compliance reports from the Advocates General of provinces about establishing a Universal Access Number (UAN) in the respective police departments of the provinces, following the law on registration of criminal cases, adequate provision of training to investigators, allocation of budget for cost of investigation, fair transfer/posting of police officers, 'SOP' for police-prosecution working etc. The Court also ordered the Attorney General of Pakistan to provide a report on the constitutionality of the new police laws passed by the Sindh and Balochistan provinces, in which, the Police Act, 1861 has been revived. 4. The First Annual Report of Pakistan Law Commission 2001 reproduced the Order passed by the Honourable Supreme Court of Pakistan in Suo Motu Case No.3 of 2001 on 10th August, 2001 = PLD 2001 SC 1041..The case was heard by two members Bench comprising the then Chief Justice Irshad Hassan Khan and Justice Sh. Riaz Ahmed. The Order was authored by the then Chief Justice Irshad Ilassan Khan himself. 5. The directions were mostly directed towards Inspectors General of Prisons of the Provinces and in essence they were directed to visit the jails especially the death cells and to improve the conditions in jail. Though the Suo Motu Order was aimed at reforming the criminal justice system as a whole, it passed most of the directions to prisons departments. 6. Reforming the Criminal Justice System of Pakistan(Asia Report No. 196) by the International Crisis Group athttp://www.crisisgroup.org/ /media/Files/asia/ southasia/pakistan/196 %20Reforming %20Pakistans %20Criminal %20Justice %20 System.pdf 7. The Police Organizations in Pakistan by the Human Rights Commission of Pakistan (2010), pp. 18-19. 8. Siddique, Akbar (2011) Prison Reforms and the situation of prisons in Pakistan http://sapandssrp.com/attachments/File/Prison reforms.pdf 9. Siddique, Osama (2011) Approaches to Legal and Judicial Reform in Pakistan: Post Colonial Inertia and the Paucity of Imagination in Times of Turmoil and Change http://lums.edu.pk/docs/dprc/DPRC-WP4-Siddique.pdf 10. Bernard, Thomas (2001) Conceptualizing Criminal Justice Theory, Justice Quarterly, Vol. 18. No.1 . March 2001, Academy of Criminal Justice Sciences. 11. Article 45 of the Constitution of Pakistan. 12. Article 142 of the Constitution of Pakistan. 13. Article 143 of the Constitution of Pakistan. 14. Article 9 of the Constitution. 15. Article 10 of the Constitution. 16. Article 10-A of the Constitution. 17. Article 12 of the Constitution. 18. Article 13(a) of the Constitution. 19. Article 13(b) of the Constitution. 20. Article 14 of the Constitution. 21. Articles 232 to 237 of the Constitution.