CRIMINAL JUSTICE SYSTEM IN PAKISTAN

CRIMINAL JUSTICE SYSTEM IN PAKISTAN

Pakistan is an Islamic republic. Islam is the state religion, and the Constitution requires that laws be consistent with Islam. The country has an area of 310,527 square miles and a population of 170 million.

The legal system of Pakistan is derived from English common law and is based on the much-amended 1973 constitution and Islamic law (sharia). The Supreme Court, provincial high courts, and other courts have jurisdiction over criminal and civil issues.

Criminal justice system:

 “A generic term for the procedure by which criminal conduct is investigated, arrests made, evidence gathered, charges brought, defenses raised, trials conducted, sentences rendered, and punishment carried out”

“Criminal Justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts. Those accused of crime have protections against abuse of investigatory and prosecution powers”

Criminal Justice refers to the agencies of government charged with enforcing law, adjudicating crime, and correcting criminal conduct. The criminal justice system is essentially an instrument of social control: society considers some conducts so dangerous and destructive that it either strictly controls their occurrence or outlaws them outright. It is the job of the agencies of justice to prevent these behaviors by apprehending and punishing transgressors or deterring their future occurrence. Although society maintains other forms of social control, such as the family, school, and church, they are designed to deal with moral, not legal, misbehavior. It is only the criminal justice system in a legal system which has the power to control crime and punish criminals.

The main objectives of the criminal justice system can be categorized as follows:

1.      Prevent the occurrence of crime.

2.      Punish the transgressors and the criminals.

3.      Rehabilitate the transgressors and the criminals.

4.      Compensate the victims as far as possible.

5.      Maintain law and order in the society.

6.      Deter the offenders from committing any criminal act in the future.

The United States Criminal Justice System

The United States Criminal Justice System is the structural basis used to maintain social control. It has many components that work together to provide justice for criminals and victims of crimes, enabling law violators to be prosecuted in a fair trial. One of the fundamental theories of the U.S. criminal justice system is that those on trial remain innocent until proven guilty.

As a result, the rights to a fair and regular trial are upheld for criminals on trial in the US Criminal Justice System. The laws are in place to ensure that criminals are not abused or cruelly punished.

Components of the Criminal Justice System:

The U.S. Criminal Justice System operates through five major components. If a crime cannot be resolved through local law enforcement, it progresses to the next step. The five components are:

Local Law Enforcement: If a citizen observes a crime, he will point out the offender to local law enforcement. The police force is the main component that brings criminals to the Criminal Justice System. Some crimes (such as speeding or trespassing) can be resolved directly by the police with the issue of a ticket or fine. For more severe offenses that involve victims, the police turn to the court system for a fair trial.

Court Trial: Once the offender has entered into the legal system, a court trial is the next step for the criminal. The law enforcement officer or other witnesses present the facts and evidence of the case to the prosecutor. The prosecutor decides if charges should be filed for the violator. If there are charges filed, a court case will follow.

Court Case: The case is brought to a judge in a court of law. If the offenses are minor and the criminal is obviously guilty, the judge will often offer a sentence of punishment, and the court case will be over. However, if the offense is more involved or the criminal pleads "not guilty," an entire trial must follow.

Trial with Grand Jury: A grand jury is used in the court of law to hear both sides of the case and help determine guilt and punishment. Having a jury of peers oversee and rule on the court proceedings is important in the rights of the criminal because the jury is a third party uninvolved in law enforcement or in the lives of the victim or offender.

Decision and Punishment: Once the jury members have heard the case, they make a decision on whether the offender is guilty or innocent. If proven guilty, in most cases, the judge will deliver the sentence of punishment. In some instances, however, the jury will decide on the criminal’s punishment.

The Criminal Justice System in UK

The criminal justice system in the UK is made up of a number of agencies each responsible to a government department. There are two main aims of the criminal justice system:

    “To reduce crime and the fear of crime and their social and economic costs”

    “To increase confidence in the system”

What is the Criminal Justice System?

The Criminal Justice System in England and Wales is made up of a number of agencies and departments. The main agencies are:

1.      The Police Servicelegal aid image

2.      The Court Service

3.      The Prison Service

4.      The Probation Service

The government departments that oversee the Criminal Justice System are:

1.      The Ministry of Justice (MOJ)

2.      The Home Office

If someone is mentally ill and going through the criminal justice system, they may be 'diverted' to health and social care services. In the criminal justice system these are often referred to as Forensic Mental Health Services. These services include psychiatric hospitals and community mental health services.

How does the system work?

People come into contact with the Criminal Justice System because they are suspected of committing a criminal offence. The usual process of going through the system is:

1.      being arrested having been suspected of committing an offence

2.      being taken to the police station where the person accused is interviewed

3.      if the offence is relatively minor, the police may decide whether or not to charge the person with the offence

4.      if the offence is more serious, the police may refer the case to the Crown Prosecution Service (CPS) who will decide whether or not wire rimmed glasses on top of a pile of papersto charge the person for the offence

5.      if charged with an offence, the person (known as a defendant) will appear at a Magistrates’ Court where the Magistrates may deal with the case themselves or send (‘commit’) the case to a Crown Court if the offence is particularly serious

6.      there may be several court hearings during which the suspect will make a plea (say they are guilty or not guilty)

7.      sentencing which could include an array of ouctomes such as imprisonment, community order or fine

8.      being detained in a prison – either as a remanded prisoner (awaiting or going through a trial at court) or as a sentenced prisoner (convicted and found guilty of an offence)

9.      being supervised by the probation service either having been released from prison with conditions to meet in the community or if serving a community order

Mental health can be considered at any stage, which could result in the defendant being 'diverted' out of the criminal justice system and into health and social care services to get the help they need, which could be hospital.

Reforming Pakistan’s Criminal Justice System

Asia Report N°196 6 Dec 2010

EXECUTIVE SUMMARY AND RECOMMENDATIONS

The ineffectiveness of Pakistan’s criminal justice system has serious repercussions for domestic, regional and international security. Given the gravity of internal security challenges, the Pakistan Peoples Party (PPP)-led government in Islamabad, and the four provincial governments should make the reform of an anarchic criminal justice sector a top domestic priority.

The low conviction rate, between 5 and 10 per cent at best, is unsurprising in a system where investigators are poorly trained and lack access to basic data and modern investigation tools. Prosecutors, also poorly trained, are not closely involved in investigations. Corruption, intimidation and external interference in trials, including by the military’s intelligence agencies, compromise cases before they even come to court. Given the absence of scientific evidence collection methods and credible witness protection programs, police and prosecutors rely mostly on confessions by the accused, which are inadmissible in court. Militants and other major criminals are regularly released on bail, or their trials persist for years even as they plan operations from prison. Terrorism cases, too, produce few convictions.

The failure of prosecutors to achieve convictions in major cases, such as the June 2008 Danish embassy bombing, the September 2008 Marriott Hotel bombing in Islamabad, and the March 2009 attack on a police academy in Lahore, has weakened public confidence in the state’s ability to respond to terrorism. Despite the increasing urgency of reform, Pakistan’s police, and indeed the whole criminal justice system, still largely functions on the imperative of maintaining public order rather than tackling 21st century crime.

A military-led counter-terrorism effort, defined by haphazard and heavy-handed force against some militant networks, short-sighted peace deals with others, and continued support to India and Afghanistan-oriented jihadi groups, has yielded few successes. Instead, the extremist rot has spread to most of the country. The military’s tactics of long-term detentions, enforced disappearances and extrajudicial killings provoke public resentment and greater instability, undermining the fight against violent extremism.

Wresting civilian control over counter-terrorism policy, a key challenge of the current democratic transition, will require massive investments in police and prosecutors, specifically to enhance investigative capacity and case building. Successes in combating serious crime, including kidnappings-for-ransom and sectarian terrorism, during the democratic transition of the 1990s demonstrate that civilian law enforcement agencies can be effective when properly authorised and equipped. With the scale of violence far greater today, the government needs all the more to utilise political and fiscal capital to modernise the criminal justice sector.

Criminal justice cannot, however, be isolated from the broader challenges of the democratic transition. The repeated suspension of the constitution by military regimes, followed by extensive reforms to centralise power and to strengthen their civilian allies, notably the religious right, have undermined constitutionalism and the rule of law. General Zia-ul-Haq’s Islamisation of the constitution and laws during the 1980s altered the basic structure of parliamentary democracy, introduced religious, sectarian and gender biases into law and made the violation of fundamental rights not just common practice but a matter of state policy. As a result, Pakistan moved farther and farther away from international standards of justice. The current parliament has, through the eighteenth constitutional amendment, reversed many of these distortions and added new provisions that, if implemented, may indeed strengthen constitutionalism and political stability. More legal reforms are needed. Discriminatory religious laws remain in force, and the justice system is still predisposed towards miscarriage.

In May 2009, the National Judicial (Policy Making) Committee (NJPC), headed by the Supreme Court chief justice, produced the National Judicial Policy (NJP) 2009 to make the justice system more responsive to citizen needs. The policy applies enormous pressures on civil and criminal courts to resolve cases within a fixed timeframe. However, with a lopsided emphasis on speedier delivery, the NJP has failed to address critical weaknesses in the judiciary, including the criminal justice system. An already low conviction rate could decline even further. While slow delivery remains a critical problem, policymakers should avoid resorting to quick fixes and procedural short-cuts such as parallel court systems and informal dispute resolution mechanisms. Such measures, including anti-terrorism courts, have failed to produce the desired results, and have also undermined the quality of justice. An enhanced and reformed criminal justice sector remains the best and only sustainable option.

International allies, particularly the U.S. and the EU, should allocate the necessary resources to make Pakistan a strong criminal justice partner. A lopsided partnership with Pakistan’s military has yielded few sustainable counter-terrorism successes. Al-Qaeda affiliated jihadi groups continue to operate in the Pakistani heartland, undermining the country’s security and the security of its neighbours and the international community more broadly. The international community must shift the focus of security assistance to the civilian law enforcement agencies, which would yield long-term counter-terrorism dividends.

RECOMMENDATIONS

To the Federal Government of Pakistan and

Provincial Governments:

1.  Repeal all laws that discriminate on the basis of religion, sect or gender, including the blasphemy laws, anti-Ahmadi laws and Hudood Ordinances.

2.  Amend the 1997 Anti-Terrorism Act to refine its definition of terrorism to include only those acts that are large in scale and intend to create a sense of fear and insecurity among segments of the public; and disband anti-terrorism courts (ATCs) and try terrorism cases in regular courts.

3.  Amend the Criminal Procedure Code to establish a robust witness protection program, and make the protection of witnesses, investigators, prosecutors and judges in major criminal cases, particularly terrorism cases, a priority.

4.  Address over-crowding in prisons by:

    a) enforcing existing bail laws;

    b) holding to account any trial judge failing to set bail where required by law;

    c) passing a new law requiring judges to allow bail unless there are reasonable grounds to believe the prisoner would abscond or commit further offences; and

    d) reforming the sentencing structure for non-violent petty crimes to include alternatives to imprisonment such as fines, probation and treatment.

5.  Guarantee the rights of all prisoners under remand by:

    a) ensuring that prison facilities are fully resourced, including with enough vehicles to transport prisoners to court on the designated dates;

    b) ensuring that they are taken to court on the dates of their hearings;

    c) taking action against jail authorities who assign labour to remand prisoners, prohibited by law; and

    d) providing free legal aid to remand prisoners who cannot afford counsel.

6.  Initiate a broad dialogue with stakeholders, including serving and retired senior police officials, jurists, criminologists, NGOs and other civil society groups to assess the strengths and weaknesses of the original Police Order (2002), and produce fresh bills in each legislature to strengthen law enforcement that have public support and political sanction.

7.  Develop mechanisms for individual police stations to articulate resource needs and for these to be reflected in provincial police budgeting processes.

8.  Carry out a comprehensive assessment of the gaps in investigation and prosecution, based on analyses of crime patterns, with the goal of identifying personnel, training and resource needs at the national, provincial and district levels; invest in producing cadres of specialists within investigation branches and agencies, in such fields as kidnapping, homicide, counter-terrorism and cyber-crime.

9.  Engage the public as an effective partner in policing by establishing and empowering neighbourhood committees, citizen-police liaison committees and public safety commissions at the national, provincial and district level to oversee critical aspects of policing and by ensuring that police have adequate resources and operational independence.

10.  Strengthen the police’s investigative capacity by:

    a) computerising and maintaining centralised, serviceable records of all FIRs;

    b) amending the Telegraph Act to establish clear protocols for investigators’ access to mobile phone data, and ensuring that this access is not undermined by the military’s intelligence etc etc